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Commissioner for Law Enforcement Data
Security Bill
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
PART 1--PRELIMINARY
Clause 1 states that the principal purpose of the Act is to promote the use
by the police force of Victoria of appropriate and secure
management practices for law enforcement data by--
· providing for the establishment and appointment of a
Commissioner for Law Enforcement Data Security;
· establishing a regime for the monitoring of law
enforcement data security management practices; and
· amending the Public Administration Act 2004.
Clause 2 is the commencement provision and provides that, subject to this
section, the Act comes into operation on a day to be proclaimed.
The default commencement date is 1 July 2006.
Clause 3 sets out definitions in this Act including the meaning of Chief
Commissioner of Police, Commissioner for Law Enforcement
Data Security, law enforcement agency, law enforcement data
and law enforcement data system.
PART 2--COMMISSIONER FOR LAW ENFORCEMENT
DATA SECURITY
Clause 4 establishes the Commissioner for Law Enforcement Data
Security.
Clause 5 provides that the Governor in Council may appoint a person as
Commissioner for Law Enforcement Data Security. A person is
not eligible for appointment as Commissioner if the person is a
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member of the Parliament of Victoria, or of the Commonwealth,
or of another State or Territory.
Clause 6 provides that the remuneration and allowances to be paid to the
Commissioner for Law Enforcement Data Security are to be
determined by Governor in Council, and cannot be reduced
without the consent of the Commissioner.
Clause 7 states that the Commissioner for Law Enforcement Data
Security holds office for a period not exceeding five years.
The Commissioner for Law Enforcement Data Security is
eligible for re-appointment and holds office on terms and
conditions determined by the Governor in Council. The
Commissioner may be appointed on a full-time or part-time
basis.
Clause 8 provides for the appointment of an eligible person to act in the
office of the Commissioner for Law Enforcement Data Security
during a vacancy in that office, or when the person holding that
office is absent from duty, or is unable to perform the duties of
the office for any other reason.
Clause 9 sets out when the Commissioner for Law Enforcement Data
Security ceases to hold office. These reasons include resignation,
becoming insolvent within the meaning of the Corporations Act,
being found guilty of an indictable offence, being nominated for
election to Parliament, or being removed or suspended from
office under section 10.
Clause 10 sub-clause (1) describes the grounds upon which the Governor in
Council may suspend or remove the Commissioner for Law
Enforcement Data Security. These grounds include misconduct,
neglect of duty, disability or any other ground on which the
Governor in Council is satisfied that the Commissioner for Law
Enforcement Data Security is unfit to hold office.
Sub-clause (2) provides that the Minister must cause to be laid
before each House of Parliament a full statement of the grounds
for suspension of the Commissioner for Law Enforcement Data
Security within 7 sitting days of that House after the suspension.
Sub-clause (3) provides that the Governor in Council must
remove the Commissioner for Law Enforcement Data Security
from office if each House of Parliament, within 20 sitting days
after the statement is laid before it, declares by resolution that the
Commissioner for Law Enforcement Data Security ought to be
removed from office.
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Sub-clause (4) provides that the Governor in Council must
remove the suspension and restore the Commissioner for Law
Enforcement Data Security to office unless each House makes a
declaration of the kind specified in sub-clause (3) within the
specified time.
Sub-clause (5) provides that the Commissioner is deemed not to
be the Commissioner for Law Enforcement Data Security during
the period of suspension.
Clause 11 describes the functions of the Commissioner for Law
Enforcement Data Security as follows--
· to establish appropriate standards for the security and
integrity of law enforcement data systems;
· to establish appropriate standards and protocols for
access to, and the release of, law enforcement data,
including, but not limited to, the release of law
enforcement data to members of the public;
· to conduct monitoring activities, including audits, to
monitor compliance with the standards and protocols
established under paragraphs (a) and (b);
· to refer the findings of monitoring activities conducted
under paragraph (c) to an appropriate person or body for
further action;
· to undertake reviews of any matters relating to law
enforcement data security requested by the Minister or
the Chief Commissioner of Police;
· any other functions conferred on the Commissioner for
Law Enforcement Data Security by or under this or any
other Act.
Sub-clause (2) states that the Commissioner for Law
Enforcement Data Security must consult with the Chief
Commissioner of Police when establishing standards and
protocols under sub-clauses (1)(a) and (b). The requirement to
consult will ensure that while promoting appropriate law
enforcement data management and security practices, the
standards and protocols developed are consistent with the law
enforcement functions of Victoria Police.
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Clause 12 describes the powers of the Commissioner for Law Enforcement
Data Security.
Sub-clause (1)(a) provides the Commissioner with the power to
require the Chief Commissioner of Police to give free and full
access at all reasonable times to any law enforcement data
(including any document on which law enforcement data is
recorded) or any law enforcement data system as is necessary to
enable the Commissioner to perform his or her functions under
this Act.
Sub-clauses (1)(b) and (c) provide that, despite anything to the
contrary in any other Act or law, the Commissioner for Law
Enforcement Data Security has the power to make copies of, or
take extracts from, any data or document accessed under sub-
clause (1)(a).
Sub-clause (2) requires the Chief Commissioner of Police to
comply with a requirement of the Commissioner for Law
Enforcement Data Security under sub-clause (1)(a), subject to
sub-clause (3).
Sub-clause (3) provides that the Chief Commissioner of Police
may refuse to comply with a requirement of the Commissioner
for Law Enforcement Data Security under sub-clause (1)(a).
This sub-clause details the grounds upon which the Chief
Commissioner may refuse to give access to that data or system.
This provision has been included to ensure that in meeting the
requirements of the Commissioner for Law Enforcement Data
Security, the provision of access to data or systems does not
impede the capacity of Victoria Police to carry out its law
enforcement functions. These grounds upon which the Chief
Commissioner may refuse to comply include instances in which
giving access to law enforcement data or systems is reasonably
likely to prejudice an investigation, prejudice a fair trial, disclose
the identity of a confidential source of information or endanger
the lives or physical safety of persons.
Sub-clause (4) provides that section 6A of the Police Regulation
Act 1958 does not apply to any power, discretion, function,
authority and duty of the Chief Commissioner of Police under
this section. The intent of this section is to preclude the
delegation of the Chief Commissioner of Police's powers under
clause 12. The restriction on delegation reflects the significance
of the exercise of the Chief Commissioner of Police's powers
under clause 12.
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A note to clause 12 explains that a Deputy Commissioner may,
however, do anything that the Chief Commissioner of Police can
do pursuant to section 6(1) of the Police Regulation Act 1958.
The exercise of the power is therefore limited to the Chief
Commissioner of Police and the Deputy Commissioners.
Clause 13 provides that the Commissioner for Law Enforcement Data
Security may disclose to--
· the Director, Police Integrity, under section 102A(2) of
the Police Regulation Act 1958; or
· the Privacy Commissioner appointed under the
Information Privacy Act 2000--
any information obtained or received in the course, or as a result
of, the exercise of the functions of the Commissioner for Law
Enforcement Data Security under this Act if this information is
relevant to the performance of functions or duties by the Director,
Police Integrity or the Privacy Commissioner.
Sub-clause (2) provides that the Commissioner for Law
Enforcement Data Security must notify the Chief Commissioner
of Police of any disclosure made under sub-clause (1).
Clause 14 provides that the Commissioner for Law Enforcement Data
Security may request that the Chief Commissioner of Police
provide any assistance that the Commissioner reasonably
considers appropriate to perform his or her functions under this
Act.
PART 3--GENERAL
Clause 15 prohibits the Commissioner for Law Enforcement Data Security,
an acting Commissioner for Law Enforcement Data Security, or
any staff provided by the Chief Commissioner of Police, from
divulging or communicating to any person any information
obtained or received in the course or as a result of the exercise of
his or her functions under this Act. It is an offence, with a
penalty of a level 9 fine, for any person to whom this section
applies to divulge or communicate such information.
Clause 16 provides that an act or decision of the Commissioner for Law
Enforcement Data Security, or an acting Commissioner, is not
invalid--
· only because of a defect or irregularity in, or in
connection with, the appointment of the Commissioner
or acting Commissioner; or
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· on the ground that the occasion for the acting
Commissioner to act had not arisen or had ceased.
Clause 17 requires the Commissioner for Law Enforcement Data Security
to make a report to the Minister by 30 September each year on
the performance of the Commissioner's functions, and the
exercise of powers, under this Act during the financial year
immediately preceding 30 June. The Minister must cause a copy
of the report to be laid before each House of Parliament before
30 October in the year in which the report is given to the
Minister.
Clause 18 provides that the Governor in Council may make regulations for
or with respect to any matter or thing required or permitted by
this Act to be prescribed or necessary to be prescribed.
Clause 19 inserts a new section (6)(1)(ba) after section 6(1)(b) of the Public
Administration Act 2004, providing that the office of the
Commissioner for Law Enforcement Data Security is a special
body for the purposes of that Act.
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