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INDEPENDENT BROAD-BASED ANTI-CORRUPTION COMMISSION ACT 2011 - SCHEDULE

Schedule

Savings and transitional provisions

        1     Definitions

In this Schedule—

"commencement day" means the day on which section 16 of the Independent Broad-based Anti-corruption Commission Amendment (Investigative Functions) Act 2012 comes into operation;

"Director" means the Director, Police Integrity under section 7 of the PIA as in force immediately before its repeal;

"OPI" means the Office of Police Integrity continued by section 5 of the PIA as in force immediately before its repeal;

"PIA" means the Police Integrity Act 2008 as in force immediately before its repeal;

"property" means any legal or equitable estate or interest (whether present or future or whether vested or contingent) in real or personal property of any description;

"rights" means all rights, powers, privileges and immunities, whether actual, contingent or prospective.

        2     General transitional provisions

    (1)     Unless the contrary intention appears, this Schedule does not affect or take away from the Interpretation of Legislation Act 1984 .

    (2)     If a repealed provision of the PIA continues to apply by force of this Schedule, the following provisions also continue to apply in relation to the provision—

        (a)     any other repealed provisions of the PIA necessary to give effect to that continued provision; and

        (b)     any regulations made under the PIA for the purposes of that continued provision.

        3     Office of Police Integrity and office of Director abolished

    (1)     On the commencement day, the Office of Police Integrity is abolished.

    (2)     On the commencement day, the office of Director is abolished and the Director goes out of office.

        4     IBAC succeeds Office of Police Integrity

On the commencement day—

        (a)     all rights, property and assets that, immediately before the commencement day, were vested in the OPI or the Director are, by force of this clause, vested in the IBAC;

        (b)     all debts, liabilities and obligations of the OPI or the Director existing immediately before that day become, by force of this clause, debts, liabilities and obligations of the IBAC;

        (c)     the IBAC is, by force of this clause, substituted as a party to any proceeding pending in any court or tribunal to which the OPI or the Director was a party immediately before that day;

        (d)     the IBAC is, by force of this clause, substituted as a party to any arrangement or contract entered into by or on behalf of the OPI, or by or on behalf of the Director, as a party and in force immediately before that day;

        (e)     any reference to the OPI in any Act (other than this Act), subordinate instrument, agreement, deed or other document must be construed as a reference to the IBAC—

              (i)     so far as it relates to any period on or after that day; and

              (ii)     if not inconsistent with the context or subject matter.

        5     Superseded references to Director

A reference in any Act (other than this Act), subordinate instrument, agreement, deed or other document to the Director must be construed as a reference to the IBAC or the Commissioner (as the case requires)—

        (a)     so far as the reference relates to any period on or after the commencement day; and

        (b)     if not inconsistent with the subject matter.

        6     Transfer of records, information and documents

All information, documents, reports, records and equipment in the possession or control of the OPI immediately before the commencement day, whether held under the PIA, any other Act or otherwise (including any information, document or other thing seized or otherwise obtained under a warrant)—

        (a)     are transferred to the custody of the IBAC on the commencement day; and

        (b)     are taken to be information, documents, reports, records and equipment in the possession or control of the IBAC on and from that commencement day.

        7     Transferred protected information

If anything referred to in clause 4, 6, 10(2) or 11(2) is protected information within the meaning of section 30D of the Surveillance Devices Act 1999 , on and from the commencement day—

        (a)     the IBAC may only use that protected information in accordance with section 30F of that Act for the IBAC's corrupt conduct investigative functions or its police personnel conduct investigative functions; and

        (b)     the IBAC must not disclose or communicate that protected information to any person or body for any other purpose.

        8     Confidentiality

    (1)     A reference in section 38 of this Act—

        (a)     to a person employed or engaged under section 35 or engaged under section 36 includes a reference to a person who was a member of OPI personnel immediately before the commencement day and who is, on and from the commencement day, an IBAC Officer; and

        (b)     to the administration of this Act or the performance of duties and functions or the exercise of powers by the IBAC includes a reference to—

              (i)     the administration of the PIA; or

              (ii)     the performance of duties and functions or the exercise of powers by the OPI or the Director under the PIA.

    (2)     A reference in section 40 of this Act—

        (a)     to an IBAC Officer includes a reference to a person who was a member of OPI personnel immediately before the commencement day and who is, on and from the commencement day, an IBAC Officer; and

        (b)     to information acquired in the course of, or as a result of, the performance of duties and functions or the exercise of powers of the IBAC under this Act includes a reference to—

              (i)     information obtained or received by the person referred to in paragraph (a) before the commencement day in the course of, or as a result of, the performance of duties and functions or the exercise of powers of the OPI or the Director under the PIA; or

              (ii)     a restricted matter within the meaning of section 23 of the PIA as in force immediately before the commencement day.

        9     Annual reports and other reports

    (1)     If, before the commencement day, the Director had not prepared any report required by section 28(1) of the PIA or under Part 7 of the Financial Management Act 1994 for the financial year ending before the commencement day, the IBAC must prepare that report.

    (2)     If, before the commencement day, the Director has prepared any report required by section 28(1) of the PIA or under Part 7 of the Financial Management Act 1994 but that report has not been transmitted to each House of the Parliament under section 29 of the PIA or under the Financial Management Act 1994 , the IBAC must transmit that report to each House of the Parliament in accordance with the applicable requirements of section 29 of the PIA or the Financial Management Act 1994 , as the case requires.

    (3)     For the purposes of subclause (1)—

        (a)     if the report relates to a whole financial year completed before the repeal of the PIA, the IBAC may prepare a report referred to in those provisions as a separate report and transmit the report to each House of the Parliament in accordance with section 29 of the PIA as in force immediately before its repeal or the Financial Management Act 1994 , as the case requires; or

        (b)     if the report relates to a partial financial year completed before the repeal of the PIA, the IBAC may prepare a report referred to in those provisions as part of its own annual report under section 165.

    (4)     If, before the commencement day, the Director has prepared a report under section 28(2) of the PIA but that report has not been transmitted to each House of the Parliament under section 29 of the PIA before its repeal, the IBAC may transmit that report to each House of the Parliament in accordance with section 162(1) as if it were a special report under that section and for that purpose, the IBAC may include in a special report any matter arising in connection with the Director's functions under the PIA as in force immediately before its repeal.

    (5)     If, before the commencement day, the Director has commenced preparing but has not completed a report under section 28(2) of the PIA before its repeal, the IBAC may complete that report and transmit it to each House of the Parliament in accordance with section 162(1) as if it were a special report under that section and for that purpose, the IBAC may include in a special report any matter arising in connection with the Director's functions under the PIA as in force immediately before its repeal.

    (6)     If, before the commencement day, the Director has completed an investigation under the PIA but has not given a report under section 50 of the PIA before the commencement day, on and from the commencement day, the IBAC may make a recommendation under section 159 of this Act in relation to that investigation completed by the Director and section 159 applies as if the investigation completed by the Director had been an investigation by the IBAC under this Act.

        10     Complaints

    (1)     If, before the commencement day, the Director had received a complaint under section 86L of the Police Regulation Act 1958 and—

        (a)     had not commenced an investigation into the complaint under Division 2 of Part 3 of the PIA; or

        (b)     had commenced but not completed an investigation under Division 2 of Part 3 of the PIA—

the IBAC may investigate or complete the investigation of that complaint on and from the commencement day in accordance with this Act as if it were a complaint made in accordance with section 52 of this Act.

    (2)     In an investigation referred to in subclause (1), the IBAC may use or rely upon any evidence given or document or other thing produced to or obtained by the Director or the OPI in relation to that investigation under Part 3 or 4 of the PIA or under any other Act.

    (3)     If, before the commencement day, the Director had completed an investigation under the PIA into the complaint but had not advised the complainant of the outcome of the complaint, section 163 applies to the complaint as if the complaint were made under this Act.

        11     Own motion investigations

    (1)     An investigation initiated by the Director under section 44 of the PIA before the commencement day that had not been completed before the commencement day may be continued and completed by the IBAC, on and from the commencement day, under this Act as if it were an investigation conducted under section 64(1)(c) of this Act.

    (2)     In an investigation referred to in subclause (1), the IBAC may use and rely upon any evidence given or document or other thing produced to the Director or the OPI in relation to that investigation under Part 3 or 4 of the PIA or any other Act.

    (3)     The IBAC may undertake any investigation that could have been undertaken under section 48 of the PIA as if it were an own motion investigation.

        12     Chief Commissioner of Police to respond to the IBAC

A request made before the commencement day by the Director under Part 3 of the PIA for the Chief Commissioner of Police to take any action, or to conduct a further investigation, to which the Chief Commissioner of Police had not (in accordance with section 49 of the PIA) provided a written response before the commencement day, is taken, on and from that day, to be a request made under section 160 of this Act.

        13     Direction to require answers etc. of police

A direction given to a person under section 47 of the PIA for the purposes of an investigation under the PIA that was in force immediately before the commencement day is taken, on and from the commencement day, to be a direction given to the person under section 84 of this Act for the purposes of an investigation under Part 3.

        14     Witness summonses and related matters

    (1)     A witness summons issued under section 53 of the PIA (other than a summons issued to a person who is 16 years of age or older but who is less than 18 years of age) that was in force immediately before the commencement day continues in force, on and from the commencement day, as if—

        (a)     Division 2 of Part 4 of the PIA had not been repealed; and

        (b)     a reference in that Division to the Director were a reference to the IBAC.

    (2)     For the purposes of subclause (1), Part 4 of the PIA (other than section 68 and Divisions 6, 7, 8 or 9) continues to apply, despite its repeal—

        (a)     to that witness summons; and

        (b)     in relation to the person to whom that witness summons is directed; and

        (c)     as if any reference to—

              (i)     the Director were a reference to the IBAC; and

              (ii)     to the Special Investigations Monitor were reference to the Victorian Inspectorate; and

              (iii)     a member of staff of the OPI were a reference to an IBAC Officer.

    (3)     A witness summons issued under section 53 of the PIA to a person who is 16 years of age or older but who is less than 18 years of age that was in force immediately before the commencement day ceases to have any force or effect on and from the commencement day.

    (4)     On and from the commencement day, a person to whom a witness summons referred to in subclause (1) has been issued may be dealt with under section 135, 136, 137 or  138, Division 2 of Part 6 or Division 5 of Part 6 of this Act, as the case requires, as if the person had been issued with a witness summons under this Act.

        15     Examinations

    (1)     If, immediately before the commencement day, a person was attending an examination under Division 3 of Part 4 of the PIA and had not been excused from attendance, on and from the commencement day—

        (a)     Part 4 of the PIA (other than section 68 and Divisions 6, 7, 8 or 9) continues to apply to that examination despite its repeal; and

        (b)     that Part applies as if a reference in that Part to—

              (i)     the Director were a reference to the IBAC; and

              (ii)     the Special Investigations Monitor were a reference to the Victorian Inspectorate; and

              (iii)     a member of staff of the OPI were a reference to an IBAC Officer.

    (2)     On and from the commencement day, sections 135, 136, 137 and 138, Division 2 of Part 6 and Division 5 of Part 6 of this Act apply to a person referred to in subclause (1) as if that person had been summoned to attend an examination under Part 6.

        16     Legal assistance for witnesses

    (1)     A person to whom legal assistance has been granted under section 76 of the PIA immediately before its repeal is entitled to continue to receive that assistance.

    (2)     An application under section 76 of the PIA before the commencement day that had not been determined before the commencement day may be determined under section 151 of this Act as if it were an application under section 151 of this Act.

    (3)     An approval given under section 76 of the PIA before the commencement day in connection with an appearance that had not commenced, or that had commenced but had not concluded, before the commencement day, is taken, on and after the commencement day, to be an approval given under section 151.

    (4)     A person to whom a witness summons under Part 4 of the PIA has been issued immediately before the repeal of that Act who has not applied for legal assistance under section 76 of the PIA before that repeal may apply, on and after the commencement day for legal assistance in accordance with section 151 as if the person had been issued with a witness summons under this Act.

        17     Witness already held in custody

If, immediately before the commencement day, a direction given under section 57(2) of the PIA in respect of a person who is held in a prison or police gaol was in force, on and after the commencement day

        (a)     section 57 of the PIA continues to apply in respect of that direction despite its repeal; and

        (b)     that section applies as if any reference in that section to the Director were a reference to the IBAC.

        18     Confidentiality notices

If a confidentiality notice issued under section 58 of the PIA is in force immediately before the commencement day, on and from the commencement day—

        (a)     that notice continues in force as if Division 2 of Part 4 of the PIA had not been repealed; and

        (b)     Division 2 of Part 4 of the PIA continues to apply in respect of that confidentiality notice despite its repeal; and

        (c)     Division 2 of Part 4 of the PIA applies as if any reference in that Part to—

              (i)     the Director were a reference to the IBAC; and

              (ii)     the Special Investigations Monitor were a reference to the Victorian Inspectorate.

        19     Legal professional privilege

If a claim of privilege under section 71 of the PIA that was made before the commencement day had not been determined before the commencement day, the claim is to be determined, on and from the commencement day, in accordance with sections 71 to 73 of the PIA—

        (a)     as if those sections had not been repealed; and

        (b)     as if a reference in those sections to the Director were a reference to the IBAC.

        20     Arrest of recalcitrant witness

    (1)     If, before the commencement day—

        (a)     the Director applied to a magistrate under section 84(1) of the PIA for a warrant to arrest a person; and

        (b)     the magistrate had not determined the application—

the application is to be determined, on and from the commencement day, under Division 7 of Part 4 of the PIA as if that Division had not been repealed and as if a reference in that Division—

        (c)     to the Director were a reference to the IBAC; and

        (d)     to the Special Investigations Monitor were a reference to the Victorian Inspectorate.

    (2)     If a warrant to arrest a person issued under section 84(2) of the PIA is in force immediately before the commencement day—

        (a)     that warrant continues in force in accordance with its terms on and from that commencement day as if that section had not been repealed; and

        (b)     subject to any conditions or limitations on an authorised officer's appointment under section 81, an authorised officer is authorised to do anything that a person named in the warrant is authorised to do pursuant to that warrant or in the execution of that warrant; and

        (c)     Division 7 of Part 4 of the PIA continues to apply in relation to the person arrested and held in custody pursuant to that warrant; and

        (d)     for those purposes, a reference to the Director in Division 7 of Part 4 of the PIA is taken to be a reference to the IBAC.

        21     Powers of entry, search and seizure

    (1)     Section 90 of the PIA as in force immediately before its repeal continues to apply, on and from the commencement day, in respect of a document or thing seized under section 89 of the PIA as if—

        (a)     a reference to an authorised officer were a reference to an authorised officer within the meaning of this Act; and

        (b)     a reference to the Director were a reference to the IBAC.

    (2)     If an application under section 91 of the PIA in relation to a document or thing seized under section 89 of the PIA had not been determined before the commencement day—

        (a)     the application is to be determined, on and from the commencement day, under section 91 of the PIA as if that section had not been repealed; and

        (b)     for the purposes of paragraph (a), a reference in section 91 of the PIA to the Director is taken to be a reference to the IBAC.

    (3)     Section 92 of the PIA as in force immediately before its repeal continues to apply in respect of a document or thing seized under section 89 of the PIA—

        (a)     until the document or thing is returned in accordance with section 92 of the PIA; and

        (b)     as if a reference in section 92 of the PIA to the Director were a reference to the IBAC.

    (4)     An application for a search warrant made under section 93 of the PIA before the commencement day that had not been determined before the commencement day is to be determined, on and from that commencement day, under section 93 of the PIA as if—

        (a)     that section had not been repealed; and

        (b)     a reference in that section to the Director were a reference to the IBAC.

    (5)     If a search warrant issued under section 93 of the PIA before the commencement day is in force immediately before the commencement day, on and from that commencement day, the search warrant

        (a)     continues in force in accordance with its terms; and

        (b)     subject to any conditions or limitations on an authorised officer's appointment under section 81, an authorised officer is authorised to do anything that a person named in the warrant is authorised to do pursuant to that warrant or in the execution of that warrant; and

        (c)     sections 94 to 101 of the PIA continue to apply to the warrant and anything done under that warrant, as if—

              (i)     those sections had not been repealed; and

              (ii)     a reference in those sections to the Director were a reference to the IBAC.

    (6)     Without limiting section 14(2) of the Interpretation of Legislation Act 1984 , despite the repeal of sections 94 to 101 of the PIA, on and from the commencement day, those sections continue to apply in relation to a search warrant issued under section 93 of the PIA (as in force immediately before its repeal) which has been executed before the commencement day as if—

        (a)     those sections had not been repealed; and

        (b)     a reference in those sections to the Director were a reference to the IBAC.

        22     Protection of persons, documents and other things

    (1)     A reference in Division 4 of Part 2 to a document or other thing that has come into a 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 under this Act includes a reference to a document or other thing that has come into a person's possession (whether before, on or after the commencement day) in the performance of functions under the PIA.

    (2)     A person who was a protected person under the PIA as in force immediately before its repeal, is taken, on and from the commencement day, to be a protected person within the meaning of section 45.

    (3)     A document or other thing which was a protected document or other thing with the meaning of section 105 of the PIA as in force immediately before its repeal, is taken, on and from the commencement day, to be a protected document or other thing within the meaning of section 46.

    (4)     A reference in section 46

        (a)     to an investigation includes a reference to an investigation under Division 2 of Part 3 of the PIA;

        (b)     to a person who has been summoned, or who has appeared, as a witness in an examination, includes a reference to a person who has been summoned, or who has appeared, as a witness in an investigation under Division 2 of Part 3 of the PIA;

        (c)     to a person who has provided the IBAC with information relating to an investigation includes a person who has provided information to the Director relating to an investigation under Division 2 of Part 3 of the PIA as in force immediately before its repeal;

        (d)     to any evidence given or information provided to the IBAC relating to an investigation includes any evidence given or information provided to the Director relating to an investigation under Division 2 of Part 3 of the PIA as in force immediately before its repeal.

    (5)     A certificate given by the Director under section 106(2) or 109A(2) of the PIA that was in force immediately before the commencement day continues in force, on and from that commencement day, as if it were a certificate given by the IBAC under section 47(2) or 50(2), as the case requires.

    (6)     An objection made before the commencement day under section 107 of the PIA to the production or inspection of a document or other thing that has not been determined under section 107 of the PIA before that commencement day is to be determined, on and from the commencement day, under section 48.

        23     Investigations completed but proceedings not commenced

    (1)     The IBAC or a sworn IBAC Officer who is authorised by the Commissioner under section 189(b) or 190(b) may commence criminal proceedings in relation to any matter for which the Director or a member of staff of the OPI authorised under section 51A(2) of the PIA was entitled to commence criminal proceedings under section 51A of the PIA as if that section had not been repealed.

    (2)     The IBAC or a sworn IBAC Officer authorised by the Commissioner under section 189(b) or 190(b) may continue criminal proceedings commenced under section 51A of the PIA by the Director or a member of staff of the OPI authorised under section 51A(2) of that Act.

        24     Contempt of Director

    (1)     If, before the commencement day, the Director issued a certificate of charge under section 79(1) of the PIA and the charge has not been determined, the charge is to be determined, on and from the commencement day, by the Supreme Court under section 82 of the PIA as if sections 79 and 82 had not been repealed.

    (2)     If, before the commencement day, the Director issued a certificate of charge under section 79(1) of the PIA and an arrest warrant under section 79(1)(b) of that Act, on and from the commencement day—

        (a)     a person to whom section 80 of the PIA applies may elect to apply for bail in accordance with that section as if sections 79 and 80 had not been repealed; and

        (b)     Division 6 of Part 4 of the PIA continues to apply in relation to the person arrested and held in custody pursuant to that warrant; and

        (c)     for those purposes, a reference to the Director in Division 6 of Part 4 of the PIA is taken to be a reference to the IBAC.

        25     Exemption from Freedom of Information Act 1982 under section 51 of the PIA

Despite the repeal of the PIA, section 51 of that Act continues to apply to any document specified in that section.

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