Victorian Numbered Acts Victorian Numbered ActsAfter section 16 of the Principal Act insert —
(1) If VCAT receives an application for review under section 16(1)(a), (b), (c), (d) or (da), VCAT must ask the Board whether the grounds for the decision of the Board that is the subject of review were wholly or partly based on any advice provided by the Chief Commissioner.
(2) If, in response to a request under subsection (1), the Board informs VCAT in writing that the decision was wholly or partly based on advice provided by the Chief Commissioner, VCAT must ask the Chief Commissioner if the advice provided to the Board—
(a) was based on any protected information; and
(b) whether any protected information was given to the Board.
(1) If, in response to a request under section 17(2) , the Chief Commissioner informs VCAT in writing that the advice was wholly or partly based on protected information and that protected information was given to the Board as part of the Chief Commissioner's advice to the Board, VCAT must appoint a special counsel to represent the interests of the applicant.
(2) If, in response to a request under section 17(2), the Chief Commissioner informs VCAT in writing that the advice was wholly or partly based on protected information but that the protected information was not given to the Board as part of the Chief Commissioner's advice to the Board, VCAT must appoint—
(a) a special counsel to the Board; and
(b) a special counsel to the applicant—
to represent the interests of each party.
(3) A special counsel must be a barrister within the meaning of the Legal Profession Act 2004 who, in the opinion of VCAT, has the appropriate skills and ability to represent the interests of a party at the hearing.
(4) At any time before the special counsel attends the hearing or obtains any confidential affidavit in relation to the application, the special counsel may communicate with the party whose interests he or she is representing, or any representative of that party, for the purpose of obtaining information or instructions from the party or representative in relation to the proceeding.
(5) Subject to section 17C(3)(b), at any time after the special counsel commences to attend the hearing or obtains any confidential affidavit in relation to the application, the special counsel—
(a) must not take instructions from the party whose interests he or she is representing, or from any representative of that party; and
(b) must not communicate any other information in relation to the hearing to that party or a representative of that party without leave of VCAT, except to communicate any order made by VCAT at or in relation to the hearing.
(6) A special counsel may be required to sign a confidentiality undertaking to VCAT.
(1) If, in response to a request under section 17(2), the Chief Commissioner informs VCAT in writing that the advice provided to the Board, that wholly or partly formed the basis of the Board's decision, was protected information—
(a) the Chief Commissioner must be joined as a party to the proceeding; and
(b) VCAT must at the hearing of the application first determine whether or not the information is protected information.
(2) For the purposes of making a determination under subsection (1)(b), VCAT may determine that a hearing or any part of it be held in private.
(3) The following provisions apply to a closed session under subsection (2)—
(a) if—
(i) section 17A(1) applies, only the Chief Commissioner, the Board and the special counsel are entitled to be present;
(ii) section 17A(2) applies, only the Chief Commissioner and the special counsels are entitled to be present;
(b) each party that is entitled to be present has a right to make submissions as to whether evidence supporting the grounds for the decision in respect of which the application is based amounts to protected information.
(4) After hearing the evidence of the Chief Commissioner, special counsel and, if section 17A(1) applies, the Board under subsection (3), VCAT must decide whether or not any of the evidence adduced amounts to protected information.
(5) If VCAT decides that none of the evidence adduced under subsection (3) amounts to protected information, VCAT must admit any party to the proceeding that was excluded from the closed session and the provisions of subsection (3) cease to apply to the conduct of the hearing.
(1) Without limiting any other power of VCAT
conferred by or under this or any other Act, if VCAT decides that any of the
evidence adduced under section 17B(3) is protected information, the provisions
of that subsection continue to apply to the hearing of the proceeding to the
extent that it relates to protected information and each party that is
entitled to be present has a right to make submissions as to—
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(a) the weight that should be given to the evidence supporting the grounds for the decision in respect of which the application is based that amounts to protected information and any other evidence adduced; and
(b) the character of the applicant, being evidence indicating whether the applicant meets the probity requirements; and
(c) whether, in all the circumstances the licence should be issued, renewed or re-instated or the ban on applying for a licence reduced to 12 months or the condition of the licence determined, varied or revoked (as the case may be).
(2) In making a determination in a proceeding to which subsection (1) applies, VCAT must decide—
(a) what weight to give the protected information and any other evidence adduced; and
(b) whether the applicant meets the probity requirements based on the character of the applicant; and
(c) whether, in all the circumstances, the licence should be issued, renewed or re-instated or the ban on applying for a licence reduced to 12 months or the condition of the licence determined, varied or revoked (as the case may be).
(3) If VCAT decides that any of the evidence adduced under section 17B(3) forms protected information—
(a) VCAT must take all steps and precautions to prevent release of that information; and
(b) if special counsel wishes to seek further instructions from the party whose interests he or she is representing on one or more occasions in relation to that protected information, the special counsel may do so only by submitting written questions for the approval of VCAT after hearing any submission from the Chief Commissioner on their content.
(4) Despite section 117 of the Victorian Civil and Administrative Tribunal Act 1998 , any order issued by VCAT in relation to a decision under this section must only state—
(a) whether the decision of the Board is upheld or overturned; and
(b) if the Board's decision is upheld, that the applicant has failed to meet the probity requirements for holding a licence.
(5) For the avoidance of doubt, VCAT may publish reasons for its decision to the extent that those reasons do not relate to protected information.
At any time before a final determination has been made by VCAT on a matter to which section 17B or 17C applies—
(a) the Board may change the Board's decision and issue, renew or re-instate the licence or reduce the ban on applying for a licence to 12 months or determine that a condition of the licence not be varied or revoked or a new condition determined (as the case may be); and
(b) if the Board makes a decision as specified in paragraph (a)—
(i) the Board must advise VCAT; and
(ii) VCAT may make any orders it thinks fit in the disposition of the proceeding.
(1) At any time before a final determination has been made by VCAT on a matter to which section 17B or 17C applies, the Chief Commissioner may request the Board to re-consider the application on which the decision that is the subject of review is based without relying on any of the advice of the Chief Commissioner that was based on protected information.
(2) If the Chief Commissioner makes a request under subsection (1)—
(a) the Chief Commissioner must advise VCAT that a request has been made to the Board under subsection (1); and
(b) VCAT —
(i) must remit the matter for re-consideration by the Board in accordance with the request of the Chief Commissioner under subsection (1); and
(ii) may make any orders that VCAT thinks fit in the disposition of the proceeding.
(1) For the purposes of a hearing to which section 17B or 17C applies, VCAT must be constituted by a presidential member.
(2) The following provisions do not apply to a proceeding for so long as section 17B or 17C applies—
(a) Subdivision 1 of Division 3 of Part 3 and section 49 of the Victorian Civil and Administrative Tribunal Act 1998 ;
(b) section 8 of the Administrative Law Act 1978 .
(3) For the avoidance of doubt, subsection (2) does not apply to any extent that the proceedings do not involve protected information.".