Essential Practice 5: Clear basis for requests during examinations
Agencies with compulsory examination powers only make requests for documents during questioning if they are clear about the nature and basis of any request. These expectations are fundamental to procedural fairness, protecting the rights of witnesses, and ensuring trust in Victoria’s integrity system.
Context
The lawful and proper use of coercive powers is central to Victoria’s integrity system.
Integrity Oversight Victoria expects that agencies’ exercises of power are:
- lawfully based
- clearly communicated
- accurately recorded
- supported by policies and practices.
When a body summonses a witness for questioning, their powers are generally limited to asking questions within the scope of the summons.
If an agency summonses a witness only to answer questions, but then during questioning requires a witness to produce documents or other things, the agency will have exceeded that lawful power.66
Given the compulsory context of questioning, if there is no lawful power to request further documents, an agency should be clear about the voluntary nature of any response.
This is to ensure that any cooperation is at the sole discretion of the witness and the witness (and their legal representative, if applicable) is informed that prior legal compulsion does not apply to the request, and there would be no adverse consequence for non-compliance.
Preferably, agencies should follow up on any such request in writing. This would avoid ambiguity and any implied requirement that a response must be provided.
Agencies should also ensure policies and procedures and any internal controls or processes for monitoring requests consistently support this practice.
Integrity Oversight Victoria has previously highlighted this issue. As noted in our 2023–24 annual report, IBAC accepted our suggestion that an examiner must be clear whether a request is voluntary or compulsory. It agreed to provide feedback to counsel assisting in a specific operation and inform future counsel assisting. The issue has not reoccurred.
We also identified examples of this issue with respect to the OCE and made similar improvement suggestions. The OCE indicated that where requests for documents are made during an examination, it would ensure it makes clear to a witness whether the request is voluntary or compulsory, including whether it relies on the Chief Examiner’s power under section 35A.67
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