'I note your request for IBAC to review PSC's investigation file on completion. Prior to a decision being made to undertake a review, IBAC requires specific information regarding potential deficiencies in PSC's handling of your matter. Should you have any concerns at the conclusion of PSC's investigation into your complaint you are welcome to raise those concerns with IBAC.'

1. On 12 September 2014, Mr Marke spoke to Inspector Trimble and requested that Victoria Police's investigation be undertaken by a different police officer because Mr Marke believed that Inspector Trimble had a close social relationship with the police officer who was the subject of his complaint. Mr Marke was advised that the matter would be reallocated to another police officer to investigate.[9] Further correspondence then ensured between Mr Marke and Victoria Police in relation to the investigation being conducted by Victoria Police.
2. By letter dated 26 February 2015, Mr Marke was advised of the outcome of Victoria Police's investigation.[10]
3. Mr Marke then lodged a FOI application on 5 March 2015 with Victoria Police pursuant to the FOI Act seeking documents relating to Victoria Police's investigation of his complaint to Victoria Police (the First FOI Request). The third part of the First FOI Application was for:

[Part 3] ... all documents including statements, reports, memos etc that relate to PSC File No; C3-2/604/2014, D14/01287, D14/021830 and D14/020503.[11]

1. I will refer to the documents held by Victoria Police forming part three of the First FOI Request as the Documents.
2. By letter dated 22 April 2016, Mr Robin Davey, Manager, Victoria Police Freedom of Information Division, informed Mr Marke that he was refused access to the Documents (the 2016 Decision).
3. Subsequent to the First FOI Request, the IBAC conducted a review of Victoria Police's investigation. Any documents coming into existence after 5 March 2015, including any IBAC review documents, did not form any part of Mr Marke's First FOI Request.
4. Mr Marke lodged an application for review of the decision to refuse access to the Documents with the Tribunal on 18 September 2015, which was allocated reference number Z727/2015 (the First Proceeding). In the First Proceeding, Victoria Police filed a witness statement of Jim Mulholland dated 14 July 2016 and written submissions dated 15 September 2016.
5. On 11 July 2017, the Tribunal made an order by consent in the First Proceeding under s 51A of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act). By this order, the Tribunal invited Victoria Police to reconsider the 2016 Decision. The reason for that order was the impending passage of the Freedom of Information Amendment (Office of the Information Commissioner) Act 2017 (the Amending Act).
6. On 4 October 2017, Mr Davey determined to affirm the 2016 Decision.
7. On 15 December 2017, Mr Marke (via letter by his solicitor) made a new FOI request to Victoria Police for access to the Documents (the Second FOI Request).
8. By letter dated 18 January 2018, Mr Marke's Second FOI Request was refused by Victoria Police on the basis of s 194 of the IBAC Act as amended by the Amending Act (the 2018 Decision). The letter stated:

I refer to your letter received on 18 December 2017 in which, under the provisions of the Freedom of Information Act 1982 ('the Act') you have requested documents relating to PSC file numbers C3-2/604/2014, D14/01287, D14/021830 and D14/020503.

These documents relate to an investigation conducted by Victoria Police which is currently being reviewed by the Independent Broad-based Anti-Corruption Commission (IBAC).

I draw your attention to section 194 of the Independent Broad-based Anti-corruption Commission Act 2012 (IBAC Act) which provides that:

The Freedom of Information Act 1982 does not apply to a document that is in the possession of any person or body to the extent to which the document discloses information that relates to -

a recommendation made by the IBAC under this Act; or

a report, including a draft report, on an investigation conducted under this Act.

I understand that documents relevant to your request arise out of, or are related to, a complaint made to IBAC and referred to Victoria Police for investigation under s 73 of the IBAC Act.

The term relates to is broad and will encompass any type of connection or relation between the two subject matters to which the words refer. As such, this provision has a broad reach and will capture those parts of documents that have any connection to an investigation. Section 194 of the IBAC Act applies to the documents regardless of the status of the investigation.

In my view, on the basis of the information that has been provided, the documents you seek would disclose information that relates to an investigation conducted under the IBAC Act. As such the documents fall within the ambit of section 194(1)(b) of the IBAC Act.

As such, pursuant to section 194 of the IBAC Act, the documents you seek access to are not subject to the FOI Act and I am unable to provide you with access to those documents pursuant to the FOI Act.

Should you wish to gain access to these documents I suggest you discuss this issue with IBAC.

1. The letter informed Mr Marke of his right to apply to the Information Commissioner for a review of the decision in accordance with ss 49A(1) and 49B of the FOI Act.
2. Mr Marke then applied to the Information Commissioner for a review of the decision pursuant to the FOI Act.
3. The Information Commissioner did not complete the review by the required period under s 49J of the FOI Act and therefore, by operation of s 49J(2)(a) of the FOI Act, was taken to have made a decision refusing to grant access to the document.[12]
4. On 29 March 2018, Mr Marke made a second application to the Tribunal for review of the decision of the Information Commissioner which gave rise to this proceeding (the Second Proceeding).[13] When the First Proceeding and the Second Proceeding came on for hearing on 20 July 2018, the First Proceeding was dismissed by consent and the Second Proceeding alone was heard.

1. The 2018 Decision was made on the basis that the Documents were exempt from the FOI Act via the operation of an exemption contained within s 194(1)(b) of the IBAC Act. This provision has been the subject of recent legislative reforms and the key issue in dispute is the proper interpretation of s 194 of the IBAC Act in its current form. Section 194 of the IBAC Act currently provides:

Exemption from the Freedom of Information Act 1982

(1) The Freedom of Information Act 1982 does not apply to a document that is in the possession of any person or body to the extent to which the document discloses information that relates to -

(a) a recommendation made by the IBAC under this Act; or

(c) a report, including a draft report, on an investigation conducted under this Act.

(2) The Freedom of Information Act 1982 does not apply to a document that is in the possession of the IBAC to the extent to which the document discloses information that relates to -

(b) information received by the IBAC under section 56; or

(c) a notification made to the IBAC under a mandatory notification provision; or

(3) In this section, document has the same meaning as it has in the Freedom of Information Act 1982.

1. The FOI Act itself also contains a provision which exempts certain documents relating to the IBAC from the FOI Act. Section 31A of the FOI Act provides:

(1) A document is an exempt document if its disclosure under this Act would, or would be reasonably likely to -

(a) prejudice an investigation undertaken by the IBAC; or

(b) disclose, or enable a person to ascertain, the identity of any person or body (other than Victoria Police) who has provided information to the IBAC; or

(c) disclose methods or procedures for preventing, investigating or dealing with protected disclosures, complaints or notifications relating to corrupt conduct or police personnel conduct the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures; or

(d) endanger the lives or physical safety of persons engaged in or in connection with the IBAC's functions or persons who have provided information to the IBAC.

(2) In deciding whether a document is an exempt document under subsection (1), an agency or Minister, if practicable, must -

(a) notify the IBAC that the agency or Minister has received a request for access to the document; and

(b) seek the IBAC's view as to whether the document should be disclosed.

See also section 194 of the Independent Broad-based Anticorruption Commission Act 2011.

1. I note that the jurisdiction of the Tribunal to review a decision of the Information Commissioner is contained within s 50(1)(b) of the FOI Act, which provides:

(1) Subject to this section, an applicant may apply to the Tribunal for review of -

(b) a decision of the Information Commissioner refusing to grant access to a document in accordance with a request;

1. Whilst there is a longer and more complex legislative chronology, the following sequence of legislative history changes summarises the relevant background to the applicable current legislation.[14]

1. Prior to the creation of the IBAC as an entity with its current powers, investigations about police conduct could be conducted by the Director of the Office of Police Integrity. The relevant legislation, the Police Integrity Act 2008 (Vic) (the PI Act), was repealed on 10 February 2013 following the IBAC's inception. Before it was repealed, the PI Act contained an exemption from the FOI Act in s 51, which provided:

Exemption from Freedom of Information Act 1982

(1) The Freedom of Information Act 1982 does not apply to a document that is in the possession of a relevant person or body to the extent to which the document discloses information that relates to -

(a) a complaint investigated by the Director under this Part; or

(b) an investigation under this Part (whether in relation to a complaint or otherwise); or

(c) a report on that investigation, including a report on the progress of the investigation.

document has the same meaning as in the Freedom of Information Act 1982;

(b) an employee in the office of the Special Investigations Monitor;

(e) a member of staff of the Office of Police Integrity;

(f) a person engaged under section 17(1)(b), or an officer or employee of such a person;

(g) a body engaged under section 17(1)(b), or a member, officer or employee of such a body.

1. When the PI Act was repealed an exemption from the FOI Act was introduced into the IBAC Act. This exemption was expressed in different terms to the provision previously contained within the PI Act.[15]
2. Immediately prior to the commencement of the Freedom of Information Amendment (Office of the Victorian Information Commissioner) Act 2017 (Vic) (the Amending Act), the exemption contained within s 194 of the IBAC Act stated:

Exemption from Freedom of Information Act 1982

(1) The Freedom of Information Act 1982 does not apply to a document that is in the possession of any person or body to the extent to which the document discloses information that relates to -

• (a) a complaint; or

• (b) an investigation conducted under this Act; or

• (c) a recommendation made by the IBAC under this Act; or

• (d) a report, including a draft report, on an investigation conducted under this Act; or

• (e) information received by the IBAC under section 56; or

• (f) a notification made to the IBAC under section 57.

(2) In this section, document has the same meaning as it has in the Freedom of Information Act 1982.

1. On 1 September 2017, the IBAC Act was amended as part of suite of amendments which were intended to make significant improvements to the FOI system, including converting the role of the Freedom of Information Commissioner to the Office of Victorian Information Commissioner with a broader mandate.
2. The Amending Act also made operational and technical improvements, including substituting s 194 of the IBAC Act with a new provision and introducing new s 31A of the FOI Act.[16]
3. The substitution of s 194 of the IBAC Act was in large part the result of recommendations by the Independent Broad-based Anti-corruption Commission Committee (the IBAC Committee) report dated 1 February 2016 entitled 'Strengthening Victoria's key anti-corruption agencies?' (the IBAC Committee Report).[17] In the IBAC Committee Report, the IBAC Committee recommended that the Victorian Government prioritise assessing s 194 of the IBAC Act to review any inconsistency in accessing documents between complaints lodged with the IBAC and Victoria Police.
4. The IBAC Committee expressed concern that in its then form, s 194 was not fulfilling the intention of s 52 of the IBAC Act, which intended for IBAC to operate as an alternative body to receive complaints regarding Victoria Police.[18] This was because s 194 was having the unintended consequence of requiring individuals to complain to Victoria Police, rather than to the IBAC, should they wish to access documents relating to their complaint under the FOI Act at a later date.
5. The IBAC Committee commented:

Based on the evidence provided to the Committee, it appears the current operation of this provision places an individual at a disadvantage in accessing their documentation should they complain first to IBAC, rather than directly to Victoria Police.

Section 52 of the IBAC Act expressly permits IBAC to act as an alternative body where complaints regarding Victoria Police may be made. The Committee believes there are often significant and important reasons why an individual may choose to complain to IBAC as an alternative to Victoria Police. The Committee is concerned that the operation of the current legislation does not fulfil the intention of this section for IBAC to operate as an alternative body to make a complaint regarding Victoria Police.

However, the Committee acknowledges and understands the concerns raised by IBAC that it is necessary to ensure the protection of methods used within investigations, and the safety of witnesses is of the upmost importance. Any review of the operation of section 194 of the IBAC Act should consider how IBAC's methodologies and the safety of witnesses could be appropriately preserved.

Recommendation 4.5: The Committee recommends that the Victorian Government as a part of its ongoing review should assess section 194 of the Independent Broadbased Anticorruption Commission Act 2011 (Vic) to review any inconsistency in accessing documents between complaints lodged with the Independent Broadbased Anticorruption Commission and Victoria Police. This matter should be prioritised.[19]

1. These considerations were also referred to by the Attorney-General's Second Reading Speech of 23 June 2016 for the Freedom of Information Amendment (Office of the Victorian Information Commissioner) Bill 2016 (the Bill to the Amending Act) (the Amending Act Second Reading Speech). It was said:

The Independent Broad-based Anti-corruption Commission (IBAC) Committee's report, Strengthening Victoria's key anti-corruption agencies?, suggested that section 194 of the IBAC act, which provides for the exemption of IBAC documents from FOI, required clarification. The need for this amendment arises from an unintended outcome, where release of certain Victoria Police documents may be inadvertently prevented by the FOI exemption in the IBAC act. For example, where Victoria Police refers a complaint to IBAC, and IBAC decides not to investigate and refers the complaint back to Victoria Police, the documents relating to the subsequent Victoria Police investigation may be exempt from the FOI act (despite IBAC not investigating the complaint). If a complaint is made directly to IBAC, and IBAC decides not to investigate and refers it on to Victoria Police, the subsequent Victoria Police investigation documents may similarly be exempt.

To address this issue, the bill amends the FOI and IBAC acts to:

clarify that the IBAC exemption (section 194 of the IBAC act) applies to documents relating to IBAC complaints, information received under section 56 of the IBAC act, and mandatory notifications where such documents are in the possession of IBAC itself, rather than in the possession of 'any person or body';

clarify that documents held by 'any person or body' that disclose information relating to a preliminary inquiry or investigation conducted by IBAC, or a recommendation made by the IBAC in a report, or draft report, will continue to be automatically exempt; and

insert a new exemption into section 31A of the FOI act, which includes documents relating to IBAC's investigations. This ensures documents which, if disclosed, would adversely affect the integrity of IBAC's investigations remain exempt.

The purpose of these clarifications is to ensure that any documents that could prejudice an IBAC investigation (or attract other exemptions under the FOI act) will remain exempt. FOI decisions that are refused access based on the new exemption will be reviewable by the FOI regulator and VCAT.[20]

1. Mr Marke contended that s 194(1)(b) of the IBAC Act exempts from the FOI Act documents in the possession of any person or body only to the extent to which they disclose information that relates to an investigation conducted under the IBAC Act. He submitted that s 194(1)(b) does not apply to exempt documents relating to an investigation conducted under the VP Act. His submission was that in this case, the investigation was conducted under the VP Act and so consequently the Documents are not exempt from the FOI Act by virtue of s 194(1)(b) of the IBAC Act.
2. Mr Marke submitted that:

1. the task of statutory construction commences with consideration of the statutory text[21] and that text should be considered in its context, which includes the legislative purpose of a provision, in particular, the mischief it was intended to remedy;[22] 2. correctly construed, an 'investigation conducted under this Act' is an investigation conducted by IBAC under this Act, i.e. under the IBAC Act, and not an investigation conducted by Victoria Police under Division 2 of Part 9 of the VP Act. This is so whether or not Victoria Police investigates under Division 2 of Part 9 of the VP Act in response to a complaint made directly to it, or following referral of a complaint from the IBAC;

1. a complaint about the conduct of a police officer was made to Victoria Police and it was subsequently investigated by Victoria Police pursuant to Division 2 of Part 9 of the VP Act. Alternatively, Victoria Police's investigation pursuant to Division 2 of Part 9 of the VP Act followed referral of his complaint from the IBAC. In either case, the Documents do not relate to an investigation conducted under the IBAC Act;

1. the purpose of the IBAC Act amendments through the Amending Act were clear from both the text as amended and the text of s 31A of the FOI Act which was introduced at the same time, and is reinforced by consideration of: * (i) the IBAC Committee Report; and * (ii) the Second Reading Speech; and 2. such an interpretation should be preferred as it best accords with the right to freedom of expression contained within s 15 of the Charter.

1. Victoria Police contended that the FOI Act did not apply to the Documents by reason of s 194 of the IBAC Act. This was argued based on the text of s 194(1)(b) considered in its context, including the legislative history of s 194.
2. Counsel for Victoria Police took the Tribunal through a lengthy history of the legislation prior to the current version of the IBAC Act, including reference to the following extraneous materials:

1. the IBAC Committee Report; 2. the Second Reading Speech;

1. a letter dated 12 August 2016 from Law Institute Victoria to the Attorney-General regarding proposed changes in the Bill to the Amending Act (the LIV Letter);

1. the Victorian Government's response to the IBAC Committee Report dated 16 August 2016;[23] and 2. the Legal and Social Issues Committee report considering the Bill to the Amending Act dated 21 March 2017.[24]
2. The essence of Victoria Police's submissions was that the text and legislative history show that the Victorian Parliament should be taken to have intended to create in effect two categories of IBAC related documents, being:
   1. IBAC related documents no matter who holds them, being documents disclosing information relating to recommendations made by the IBAC under the IBAC Act; investigations conducted under the IBAC Act; and reports on investigations conducted under the IBAC Act; and
   2. IBAC related documents that are immune only if in the possession of the IBAC, being documents disclosing information relating to complaints; information received by the IBAC under s 56; notifications made to the IBAC under 'mandatory notification provision'; and a 'preliminary inquiry'.
3. It was argued that the second category of documents will nevertheless be exempt if held by a person other than the IBAC if s 31A of the FOI Act is satisfied.
4. Victoria Police argued that a complaint made to the IBAC pursuant to Part 3 of the IBAC Act which led to an investigation, notwithstanding it was one which was conducted by another investigative body (after referral pursuant to s 73 of the IBAC Act), was an investigation under the IBAC Act. Therefore, it was submitted that the exemption under section 194 (1)(b) of the IBAC Act was enlivened because the documents held by the Victoria Police were caught by the width of the words 'that relates to... an investigation conducted under this Act'.
5. Victoria Police relied on the presumption of re-enactment to argue that s 194(1)(b) had been the subject of judicial consideration in earlier iterations of the legislation and thus, consistently with those prior judicial decisions, ought to be given a wide meaning. This was said to be because:

1. previous case law relating to the PI Act and its application to the FOI Act determined that an investigation by the Ethical Services Department of Victoria Police was an investigation under the PI Act;[25] and

1. as the text of s 194(1)(b) remained unchanged,[26] the Tribunal ought to similarly find that an investigation in the circumstances in this case was an investigation under the IBAC Act.[27]
2. It was submitted by Victoria Police that there was a question of the Tribunal's jurisdiction.[28] Victoria Police concluded that the FOI Act does not apply to the Documents by reason of s 194(1)(b) and that consequently the Tribunal does not have jurisdiction to hear the matter.[29]

1. The Tribunal's jurisdiction is enlivened because the decision sought to be reviewed is a decision of the Information Commissioner refusing to grant access to a document in accordance with a request pursuant to s 50(1)(b) of the FOI Act.
2. The Tribunal has jurisdiction to determine whether the Documents are excluded from the operation of the FOI Act pursuant to s 194 of the IBAC Act.[30]
3. The question for determination is whether the Documents sought by the Mr Marke[31] are documents which fall within the category of documents caught by s 194(1)(b), being a document which 'discloses information that relates to ......an investigation conducted under this Act'.
4. Insofar as any of the documents fall within that exemption, the FOI Act does not apply to those documents and Mr Marke will not be entitled to access those documents on that basis.

1. Mr Marke seeks the Documents held by the Victoria Police. He does not seek documents in the possession of the IBAC.
2. I am satisfied that the sequence of events as previously set out[32] demonstrates that there are in effect two complaints:
   1. one made pursuant to s 167 of the VP Act (the Substantive Complaint); and
   2. a second complaint made to the IBAC, which was referred to the Chief Commissioner for investigation pursuant to s 73 of the IBAC Act (the Referred Complaint).
3. Whether or not Mr Marke's impetus to contact the IBAC was to make a complaint about the expedition with which the Substantive Complaint was investigated, the IBAC appears to have referred the whole of the Substantive Complaint to Victoria Police to investigate, rather than conduct its own investigation.
4. The investigation of the Substantive Complaint and the Referred Complaint were conducted by Victoria Police pursuant to the processes and powers under Division 2 of Part 9 of the VP Act.
5. The factual basis for the argument by Victoria Police relies on Mr Marke's complaint to the IBAC being treated as, or transforming the investigation already commenced by Victoria Police under Division 2 of Part 9 of the VP Act into, an investigation under the IBAC Act.
6. Whether or not the investigation of either the Substantive Complaint or the Referred Complaint was conducted under the IBAC Act for the purpose of s 194(1)(b) is a matter of statutory interpretation.

1. It is the duty of the Tribunal to give the words of the statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning will correspond with the grammatical meaning of the provision. However, the context of the words; the consequence of the literal or grammatical construction; the purpose of the statute; or the canons of construction may require the words of the legislative provision to be read in a way that does not correspond with its literal or grammatical meaning.[33]
2. The starting point for the task of statutory construction commences with consideration of the text, in its context. The modern approach to statutory interpretation insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise.[34] Context is used in its widest sense, to include such things as the existing state of the law and the mischief one may discern the statute was intended to remedy.[35]
3. Additionally, s 35(a) of the Interpretation of Legislation Act 1984 (Vic) (the ILA) provides that in the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act shall be preferred to a construction that would not promote that purpose or object.
4. Section 35(b) of the ILA provides that consideration may be given to any matter or document that is relevant including but not limited to:
   • (i) all indications provided by the Act or subordinate instrument as printed by authority, including punctuation;
   • (ii) of proceedings in any House of the Parliament;
   • (iii) explanatory memoranda or other documents laid before or otherwise presented to any House of the Parliament; and
   • (iv) reports of Royal Commissions, Parliamentary Committees, Law Reform Commissioners and Commissions, Boards of Inquiry, Formal Reviews or other similar bodies.

1. Giving the words of s 194(1) their plain meaning, 'an investigation conducted under this Act' must mean an investigation conducted pursuant to the processes and powers under the IBAC Act.
2. The processes and powers of investigation are those carried out by the IBAC itself and not by a third party.
3. It is clear on the facts in the present case that the investigation was conducted under the VP Act by Victoria Police and not conducted under the IBAC Act, or in conjunction with the IBAC.[36]
4. In my view, the plain meaning of s 194(1)(b) restricts the documents which are exempt from the FOI Act to documents which disclose information that relates to an investigation actually conducted by the IBAC under the provisions of the IBAC Act and not, as was the case in these circumstances, to an investigation conducted by Victoria Police under the VP Act.
5. I have formed the view, on the plain reading of the text of s 194 of the IBAC Act, that the reference in section 194(1)(b) to 'an investigation conducted under this Act' means an investigation actually conducted under the IBAC Act by the IBAC.

1. The context of s 194(1)(b) supports the view that documents which disclose information that relates to an investigation actually conducted by the IBAC under the provisions of the IBAC Act are exempt from the FOI Act. The context of s 194(1)(b) is considered in detail below.

1. The main purpose of the enactment of the IBAC Act was to establish the IBAC.[37]
2. The IBAC Act states that the IBAC must, in performing its functions, prioritise its attention to the investigation and exposure of corrupt conduct which the IBAC considers may constitute serious corrupt conduct or systemic corrupt conduct.[38] The IBAC has the function to identify, expose and investigate corrupt conduct, to identify, expose and investigate police personnel misconduct and to assess police personnel conduct.[39]
3. The IBAC legislative scheme provides for the IBAC, as an independent body, to investigate corruption, but it prioritises the more serious or systemic corrupt conduct and otherwise refers the task of conducting an investigation to other relevant investigatory bodies, such as the Victoria Police, whilst maintaining an overall oversight and integrity role.[40]

1. The structure of the complaint provisions pursuant to Part 3 of the IBAC Act provide for complaints to be made to the IBAC about corrupt conduct.[41]
2. Section 52 of the IBAC Act provides that a person may make a 'police personnel conduct complaint' directly to the IBAC. Separately, pursuant to s 167 of the VP Act, a complaint about the conduct of a police officer may be made to another police officer or to the IBAC.
3. 'Police personnel conduct complaint' is defined in s 5 of the IBAC Act as a complaint made to the IBAC under s 167 of the VP Act or a complaint made to the IBAC in relation to the 'police personnel conduct' of a member of Victoria Police personnel other than a police officer or protective services officer.
4. The task of processing complaints is by commenced by s 58 of the IBAC Act, which provides that in relation to any complaint made to the IBAC, the IBAC must do one of three things, being:

1. dismiss the complaint; 2. investigate the complaint; or

1. make a referral of the complaint.
2. The IBAC must do one of these three things. It can decide to investigate itself (which did not do in this case), dismiss the complaint (which did not do in this case) or make a referral of the complaint (which it did do, in this case to Victoria Police).

1. Under Part 3, Division 4 of the IBAC Act,[42] s 64 provides that 'the IBAC may conduct an investigation in accordance with its police personnel conduct investigative functions' on:

1. a 'police personnel conduct complaint' made under s 52; 2. a notification under ss 57(2), 57(4) or 57(6) or information provided under s 169 of the VP Act; or

1. its own motion.
2. In my view, there is a clear distinction between the act of conducting an investigation under the IBAC Act and, on the other hand, the referral to a third-party investigative or integrity body, who in turn conducts an investigation. In the case of a referral to Victoria Police, that referral is explicitly conducted pursuant to the VP Act and not the IBAC Act.

1. Section 73(1) of the IBAC Act provides that the IBAC must refer a complaint to a specified body under s 73(2), if the IBAC considers:
   1. the subject matter of the complaint is relevant to the duties, functions or powers of that body; and
   2. it more appropriate for the complaint to be investigated by that body rather than by the IBAC.
2. The Chief Commissioner is a specified body.[43]
3. Section 73(5) of the IBAC Act makes clear that when the IBAC refers a complaint to the Chief Commissioner, the Chief Commissioner must:
   1. if the complaint is a 'protected disclosure complaint', 'investigate the protected disclosure complaint under Part 10 of the Victoria Police Act 2013';[44] and
   2. otherwise, 'investigate the complaint...under Division 2 of Part 9 of the Victoria Police Act 2013'.[45]
4. The plain reading of s 73(5) of the IBAC Act supports the view that when a complaint is referred to Victoria Police, the investigation is conducted pursuant to Division 2 of Part 9 of the VP Act (or Part 10 of the VP Act in the case of a 'protected disclosure complaint') and not pursuant to the investigative processes set out in Part 3 of the IBAC Act.
5. In my view, the power of referral itself highlights a distinction between the function of investigation under the IBAC Act and an investigation undertaken by another party following to a referral.
6. I also note that in Bare v IBAC,[46] the majority of the Court of Appeal held that a decision not to conduct an investigation was found to not to be an act for the purpose of an investigation pursuant to s 109 of the PI Act. Although the finding was made in a different context, the distinction drawn between a 'decision to conduct an investigation' and what is done in the course of or pursuant to an investigation is instructive in this case. Santamaria JA stated, 'An even clearer distinction can be drawn between a decision not to conduct an investigation and, a decision to conduct an investigation having being taken, decisions that are taken in the course of that investigation.[47]

1. In my view, the IBAC clearly has an oversight role of police conduct matters that is to be distinguished from its own investigatory role and processes under the IBAC Act.
2. There is an interrelationship that exists between the VP Act and the IBAC Act. This is clear from:

1. the ability for a person to complain about police conduct either directly to the IBAC or to Victoria Police; 2. the obligation and the mechanism for referral of complaints by the IBAC to the Chief Commissioner;[48] and

1. the Chief Commissioner's notification and reporting obligations to the IBAC.[49]
2. This interrelationship demonstrates, in substantial part, the means by which the IBAC oversees complaints and investigations conducted by the Victoria Police.
3. Subsection 78(2) of the IBAC Act provides that when IBAC has made a referral to the Chief Commissioner,[50] IBAC may require the Chief Commissioner to provide IBAC with information regarding the referred investigation or any action taken in respect of the referred matter.
4. Section 57(2) of the IBAC Act provides that the Chief Commissioner must notify the IBAC of any complaint received by the Chief Commissioner about corrupt conduct or police personnel misconduct by a Victoria Police employee or police recruit.
5. The note to s 57(3) of the IBAC Act references ss 169 and 170 of the VP Act, which require the Chief Commissioner to provide IBAC with certain details of complaints.
6. Under s 170(1) of the VP Act, the Chief Commissioner must, as often as requested by the IBAC, report to the IBAC on the progress of an investigation. Under s 170(3) of the VP Act, after completing an investigation, the Chief Commissioner must report to the IBAC on the results of the investigation and (if any) any action taken or proposed to be taken.[51]
7. In my opinion, the function of the note in s 57(3) (much like the note to s 167 of the VP Act, which is discussed below) demonstrates the respective investigatory roles allocated to the Victoria Police and to the IBAC, and the oversight role of the IBAC.[52]
8. This is consistent with a legislative scheme that provides for complaints to be made about corrupt conduct generally and police conduct in particular.
9. The legislative scheme provides for a prioritisation of resources which requires the IBAC to take a proactive stance in referring complaints to other investigative bodies. These other investigative bodies, following referral by IBAC, conduct an investigation in accordance with their own legislative powers and report back to the IBAC. This allows the IBAC to maintain an oversight role.
10. However, the referral and subsequent oversight is to be distinguished from the actual 'conducting' of an investigation. This is the task that the investigating body undertakes, such as (in this case) Victoria Police.
11. As a consequence of my review of the IBAC Act as a whole, I have concluded that there is a difference between an investigation conducted by the IBAC in accordance with the IBAC Act and an investigation conducted by Victoria Police under the VP Act where IBAC maintains an oversight role.
12. When s 194(1)(b) is read in the context of the processes and powers of the IBAC Act, including the IBAC's police oversight role, I cannot but conclude that there is a clear distinction between documents which relate to an investigation conducted by the IBAC itself and other bodies who investigate a complaint.

1. The IBAC's power to conduct an investigation into police personnel conduct is found in Part 3, Division 4 of the IBAC Act. The IBAC's duty to refer certain complaints for investigation by a third party is found in Part 3, Division 5.
2. The division headings into which the IBAC Act is divided form part of the Act.[53]
3. In my view, notwithstanding that all of Part 3 is headed 'Investigations', the Division 4 heading, 'Carrying out investigations', and the Division 5 heading, 'Referrals' supports the distinction between an investigation conducted under the IBAC Act and a referral to a third party for investigation conducted under a different Act.
4. Further support for the difference between the act of conducting an investigation under the IBAC Act and other processes open to the IBAC is Part 3, Division 3A, which is headed 'Preliminary inquiries'. Two provisions in this Division, ss 59A and 59B, refer to a preliminary enquiry for the purposes of determining whether to dismiss, refer or investigate a complaint. The phrase 'preliminary inquiry' and 'investigation conducted under this Act' are not interchangeable, as is evidenced by the use of both phrases in s 194.

1. Mr Marke has not made a claim for documents in the possession of IBAC.
2. It is clear from s 194(2) of the IBAC Act that documents in the possession of the IBAC are exempt from the FOI Act to the extent that they disclose information that relates to a complaint; information received by IBAC under s 56 of the IBAC Act; a notification made to IBAC under a 'mandatory notification provision'; or a 'preliminary inquiry'.
3. It is evident from the current structure of s 194 that there is a deliberate delineation between documents held by a third party and documents in the possession of IBAC.
4. This is clearly so when one compares the current version of s 194 of the IBAC Act, as substituted by the Amending Act, to the previous version. The previous version of s 194 incorporated an extremely wide exemption for documents in the possession of third parties as well as documents in the possession of the IBAC.[54]
5. The current version of s 194 now shows a deliberate division between a 'document that is in the possession of any person or body' and a 'document that is in the possession of the IBAC'. In the previous version of s 194, documents in the possession of the IBAC and third parties were not differentiated.
6. In my view, the scope of the exemption in s 194(1), as substituted by the Amending Act, in relation to documents in the possession of a third-party (as opposed to IBAC) has been deliberately limited.

1. Section 31A of the FOI Act is a new exemption, also introduced by the Amending Act,[55] which exempts from disclosure under the FOI Act documents that would or would be reasonably likely to:

1. prejudice an investigation undertaken by the IBAC; or 2. disclose the identity of any person or body (other than Victoria Police) who has provided information to the IBAC; or

1. disclose investigatory procedures or reasonably likely to affect or prejudice the effectiveness of methods and procedures; or

1. endanger the lives or physical safety of persons engaged in or in connection with the IBAC's functions or persons who have provided information to the IBAC.
2. In my view, there is a clear connection between s 31A of the FOI Act and s 194 of the IBAC Act. This is evidenced by the Amending Act's Second Reading Speech and the note that follows s 31A of the FOI Act.
3. As noted in the IBAC Act's Second Reading Speech,[56] s 31A of the FOI Act was part of the package of measures introduced to improve the efficiency of the FOI system and to clarify the documents which were caught as an unintended outcome of the previous provisions relating to IBAC documents relating to IBAC's investigations.[57] Further, below s 31A of the FOI Act, a note is included that directs the reader to 'see also' s 194 of the IBAC Act.[58]
4. I consider that the new exemption introduced as s 31A of the FOI Act supports the position that the scope of documents exempt under s 194(1) of the IBAC Act, (being documents in the 'possession of any person or body') was reduced as a result of the Amending Act. A proper construction of the FOI Act indicates that s 31A was introduced to ensure that documents which would adversely affect the integrity of IBAC's investigations, if disclosed, remain exempt.

1. As noted, s 35(a) of the ILA provides that a construction that would promote the purpose or object underlying an Act shall be preferred to a construction that would not promote that purpose or object.
2. In construing the legislation in this case, I may take into account extrinsic evidence in aid of ascertaining the meaning of the text.[59]
3. In relation to the amendments to s 194 of the IBAC Act, the Explanatory Memorandum to the Bill to the Amending Act provides:

The purpose of the new section 194 is to clarify IBAC's existing freedom of information exemption. This is achieved by providing that documents held by persons or bodies other than IBAC that do not relate to investigations, recommendation and reports are not automatically exempt from the operation of the Freedom of Information Act 1982. Instead these documents will be subject to new exemption in section 31A of the Principal Act.[60]

1. As quoted in detail above at paragraph 41, the Amending Act Second Reading Speech unequivocally stated that Parliament of Victoria's intention in amending s 194 of the IBAC Act was to narrow the scope of the FOI exemption contained within the IBAC Act to addres an 'unintended outcome'. This unintended outcome included documents being exempt from the FOI Act in the exact circumstances which arise in this matter. I highlight the following passage:

The need for this amendment arises from an unintended outcome, where the release of certain Victoria Police documents may be inadvertently prevented by the FOI exemption in the IBAC act. For example... If a complaint is made directly to IBAC, and IBAC decides not to investigate and refers it on to Victoria Police, the subsequent Victoria Police investigation documents may ... be exempt... To address this issue, the bill amends the FOI and IBAC acts to clarify ... section 194 of the IBAC act..[61]

1. Additionally, in its response to the IBAC Committee's Report tabled on 16 August 2016 after the Bill for the Amending Act had been introduced, the Government stated that it supported the recommendation of the IBAC Committee to address the inconsistency in accessing documents where complaints were made to IBAC or Victoria Police. The Government stated that that through the proposed amendments to s 194 of the IBAC Act, that inconsistency would be addressed by 'narrowing the scope of the FOI exemption so that it only applies to documents.. disclosing information relating to an IBAC investigation'.[62]
2. Clearly, the Second Reading Speech, the Explanatory Memorandum to the Bill to the Amending Act and the Government's response to the IBAC Committee's Report support an interpretation which limits the extent of the exemption.
3. Victoria Police referred to other extrinsic documents in aid of their contention that the legislature intended to create a wider exemption. This included that the Law Institute of Victoria (LIV) had given evidence before the IBAC Committee prior to introduction of the Bill for the Amending Act stating its concerns about the FOI exemption in the IBAC Act.
4. These concerns were again raised in relation to the proposed amendments to s 194 of the IBAC Act in the LIV Letter, where it was stated:

...The LIV is, however, concerned that amendments in the FOI Amendment Bill as proposed will not solve the problem that they seek to address.

Instead, in the LIV's view it is likely that the legislation, as presently drafted, would lead to the same broad interpretation as has currently been adopted and would result in documents in the possession of Victoria Police relating to an investigation conducted by Victoria Police being exempt in circumstances where a complaint was first made to IBAC and then referred back or Victoria Police refers a complaint to IBAC but IBAC declines to investigate and refers it back.

1. Later, on 8 March 2017, a representative from the LIV gave evidence before the Legal and Social Issues Committee voicing these concerns once more.
2. It was argued by Victoria Police that from this I should draw the conclusion that Parliament intended the provision to have a wider meaning as, 'It was squarely put to two parliamentary committees that the manner in which Victoria Police had interpreted and applied s 194(1)(b) was a mischief requiring correction, and yet Parliament did not change it by the Amending Act.'[63]
3. I am not persuaded that this submission should override the words of the text itself nor Parliament's stated intention to allow access to documents in this situation (as specifically referred to in the Amending Act Second Reading Speech).
4. I come to this conclusion notwithstanding that the other documents referred to by Victoria Police, including the Legal and Social Issues Committee's report and the LIV Letter, chronologically postdate the Amending Act Second Reading Speech. I have concluded that when the whole of the material referred to is considered, it is open to me to find that the concerns raised by the LIV were in fact overstated. Further, the language of s 35(b) of the ILA permits, but does not oblige, me to refer to the extrinsic materials which counsel for Victoria Police seeks to place before me.[64] In my view, it would not be appropriate for this extrinsic material to be used to raise doubts as to an interpretation which I have arrived at on a plain reading of the text supported by context.
5. I have formed the view that the discussion and commentary contained in these documents does not lead to a conclusion that the legislature intended to do other than what the Amending Act Second Reading Speech contended. All these documents do is raise the possibility that a further rewording of the text would put the 'unintended consequence' question absolutely beyond doubt. The fact that concerns were raised about the text prior to its enactment does not override the weight that should be given to the words of the legislation itself taken as a whole.

1. Counsel for Victoria Police relied on the presumption of re-enactment as a means of demonstrating that the exemption to the FOI Act now found in s 194 of the IBAC Act was intended to be a wide one. The presumption of re-enactment was raised due to earlier authorities that considered earlier versions of the legislation.
2. I do not agree that such a conclusion can be reached given my examination of the provision's legislative history and the current statutory framework.
3. Both parties conceded that I was not bound by any of these earlier decisions as a matter of precedent. This concession was correctly made. In any event, the words and structure of the clauses considered in earlier decisions are not identical.

Luck and Other Earlier Decisions on the FOI Exception

1. The earlier cases which were referred to by the parties, in particular, Zeqaj v Office of Police Integrity;[65] Luck v Independent Broad-based Anti-corruption Commission (Luck);[66] Luck v Principal Officer of Independent Broad-based Anti-Corruption Commission;[67] and Risson v Independent Broad-based Anti-corruption Commission[68] were decided under legislation which pre-dates the relevant legislation before me.
2. The relevant legislation providing for an exemption from the FOI Act at the time of these cases was the PI Act. The PI Act set out a different scheme for complaints and investigations to that which now applies.
3. The key provisions of the PI Act that applied to these earlier cases is set out below.

(1) The Director may determine that a complaint does not want investigation-

(i) the subject matter of the complaint is trivial; or

(ii) the complaint is frivolous or vexatious or not made in good faith; or

(b) if the complainant had had knowledge for more than a year of the conduct complained of and fails to give a satisfactory explanation for the delay in making the complaint.

(2) Subject to subsection (4), the Director must refer a complaint warranting investigation to the Chief Commissioner.

(3) If the Director refers a complaint to the Chief Commissioner under subsection (2) , the Chief Commissioner must investigate the complaint under Division 2 of Part IVA of the Police Regulation Act 1958.

51 Exemption from the Freedom of Information Act 1982

(1) The Freedom of Information Act 1982 does not apply to a document that is in the possession of a relevant person or body to the extent to which the document discloses information that relates to -

(a) a complaint investigated by the Director under this Part; or

(b) an investigation under this Part (whether in relation to a complaint or otherwise); or

(c) a report on that investigation, including a report on the progress of the investigation

1. In each of the cases referred to above, access to the relevant documents was refused.
2. It is clear that the exemption from the operation of the FOI Act was wider under s 51 of the PI Act when one compares it to the current form of s 194 of the IBAC Act.
3. Previously, under the PI Act, the FOI Act did not apply to a document that was in the possession of a relevant body to the extent that the document disclosed information that related to 'a complaint investigated by the Director under this Part' or 'an investigation under this Part (whether in relation to a complaint or otherwise)'.
4. In summary, the key differences between the version of the exemption under s 51 of the PI Act and the current version of s 194 of the IBAC Act are that:

1. the exemption in s 194 is broken into two parts: documents held by a 'any person or body' and documents held by the IBAC; 2. documents that relate to a complaint are not caught by s 194(1), the first part of the exemption, but remain relevant to the documents held by the IBAC, that is s 194(2);

1. the range of documents that are exempt from the operation of the FOI Act is significantly wider in s 194(2) than those exempt under s 194(1); and

1. s 51 of the PI Act referred to complaints investigated or investigations under Part 3, whereas s 194 of the IBAC Act refers to investigations conducted under this Act. As I have previously set out, in my opinion, investigations conducted under this Act can only mean investigations actually carried out under the IBAC Act, and not investigations actually carried out or conducted under other legislation, such as the VP Act.
2. The current structure of the complaints mechanism is contained in s 58 of the IBAC Act. When a complaint made to the IBAC about police conduct, s 58 requires the IBAC to elect to either dismiss the complaint, refer the complaint or investigate the complaint itself. There was no direct equivalent of s 58 of the IBAC Act in the PI Act.
3. Whilst the IBAC had a supervisory role over police investigations under the PI Act, the emphasis on prioritisation of investigations in terms of severity or systemic corruption is now clearly apparent in the IBAC Act. Signifying this change of emphasis between the IBAC Act and the previous legislation, the referral to other integrity bodies to conduct investigations is now clearly provided for in the IBAC Act.
4. The mandatory choice imposed on the IBAC in respect of dismissal, investigation or referral (pursuant to s 73 of the IBAC Act) is a key provision. It demonstrates this change of emphasis to one of oversight rather than investigation in the context of s 194 of the IBAC Act.
5. In my opinion, looking at the structure of the IBAC Act as a whole, the overarching supervisory role of the IBAC is very clear.
6. Parliament's intention to provide the investigatory procedures and processes of the IBAC with protection from disclosure under the FOI Act is clear when a comparison of the choice of language in s 194 of the IBAC Act and s 51 of the PI Act is undertaken. While s 194 refers to 'investigations conducted under this Act', s 51 of the PI Act referred to 'investigations under this Part'. This further demonstrates an intention to extend protection under the IBAC Act that is not provided for under the VP Act.
7. Further, the division in the current iteration of s 194 into two distinct subsections, one relating to documents held by any person and the other referring to documents in the possession of the IBAC, also make it clear that a difference in extent of the exemption is intended depending on which entity is in possession of the documents.
8. Such a change in emphasis and a reduction in the restriction on access to documents relating to investigations conducted by the Victoria Police is consistent with the IBAC Committee Report and the Amending Act Second Reading Speech.

1. The presumption of re-enactment, that is that a rule after judicial consideration is to be regarded as an endorsement of its judicial interpretation, has itself been questioned.[69]
2. However, in Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees (Re Alcan),[70] the High Court did unanimously apply the re-enactment presumption. In that case, the High Court commented that the presumption was 'considerably strengthened' by the legislative history of the Act in question.[71] In that case, a report of a committee of review recommended a different approach from that ultimately adopted by the Federal Parliament in the amending Act. The Minister's second reading speech indicated that the government had not accepted the committee's recommendation on this matter. These facts reinforced the presumption that Federal Parliament had not intended to overturn the decision interpreting the words in the Act it had re-enacted.[72]
3. I am not convinced that the presumption arises in this case because of the changes to what is now s 194(1)(b) over the course of its legislative history. The exemption from the FOI Act in the current version of s 194 of the IBAC Act as now framed is significantly different from its previous iteration, and I cannot agree that it is of the same effect as it was when Luck[73] was decided in 2013. In Re Alcan, Federal Parliament adopted the language of the former Act into the Act in 'almost identical terms'.[74] Section 51 of the PI Act has not been adopted in almost identical terms but rather, in my view, substantially different terms.
4. Further, unlike Re Alcan, the extrinsic material does not indicate that Parliament has not accepted the LIV recommendation, but rather that the LIV recommendation was not necessary. The re-enactment presumption is rebutted by the legislative context of the IBAC Act as a whole and the applicable extrinsic material. In particular, the Amending Act Second Reading Speech is inconsistent with such an interpretation. I am satisfied the words of s 194 do not in fact raise any doubt as to whether the re-enactment presumption applies, but if they do, the Amending Act Second Reading Speech indicates clearly that it does not.

1. I was referred to the decision of Gilmore v Victoria Police FOI Division[75] (Gilmore), which was determined under the same version of the IBAC Act that applies in this case.
2. I note that the Tribunal in Gilmore was not apparently referred to the extrinsic documentation to which I was referred, and the Tribunal, whilst complimentary about the submissions received, was not in the same fortunate position as I have been to have experienced counsel fully arguing the matter.
3. In Gilmore, the Tribunal noted that s 73 of the IBAC Act is not identical to s 40 of the PI Act, under which the Director of the Office of Police Integrity was required to refer a complaint warranting investigation to the Chief Commissioner.[76]
4. However, the Tribunal concluded that where a complaint is referred by the IBAC to the Chief Commissioner, and then it is in investigated by the Chief Commissioner, the investigation is an investigation under Part 3 of the IBAC Act. [77]
5. The Tribunal found that the 'crucial note' to s 167[78] in combination with the linked provisions of the IBAC Act and the VP Act was determinative in its finding that an investigation carried out by the Chief Commissioner pursuant to the provisions of Division 2 of Part 9 of the VP Act was an investigation under Part 3 of the IBAC Act.
6. I note that s 167 of the VP Act provides:

(1) A complaint about the conduct of a police officer or protective services officer may be made -

• (a) to another police officer or protective service officer; or
• (b) to the IBAC.

Complaints made to the IBAC are investigated under Part 3 of the Independent Broad-based Anti-corruption Commission Act 2011.

1. In effect, the Tribunal has interpreted the words of the note to s 167 to mean that any investigation conducted as a result of a referral by the IBAC will be an investigation under Part 3 of the IBAC Act. This is inconsistent with the scheme of the IBAC Act as a whole and its interrelationship with the VP Act, as I have set out previously.
2. I do not agree that the words of the note have the effect of bringing a complaint investigated pursuant to Part 9 Division 2 of the VP Act into an investigation under Part 3 of the IBAC Act. I do not agree with the emphasis and role attributed to the note to s 167 of the VP Act which was accorded by the Tribunal in the Gilmore. The fact that a note is given the status of the Act[79] does not mean that the note can govern the text of the Act,[80] and even less so in these circumstances, as the note appears in the VP Act and not in the IBAC Act.
3. In my view, the Tribunal's reasoning in Gilmore fails to consider the key oversight role and purpose of the IBAC under the IBAC Act; the scheme of dealing with complaints embodied in the legislation; and the difference between the act of actually conducting investigations pursuant to the procedures and processes under the IBAC Act and the other processes available in respect of complaints.
4. The Tribunal's reasoning is also inconsistent with an examination of the extrinsic evidence I have previously set out.

Charter of Human Rights and Responsibilities Act 2006

1. Mr Marke submitted that his construction of s 194 of the IBAC Act should be preferred as it best accords with the right to freedom of expression contained within s 15 of the Charter_._
2. Victoria Police made no submissions on this point.
3. For reasons I have already provided, in my view the words of s 194 of the IBAC Act are sufficiently clear. In applying the ordinary principles of statutory construction, I come to the same construction of s 194(1)(b) of the IBAC Act as advanced by Mr Marke.
4. If, however, the words of s 194(1)(b) of the IBAC Act are capable of more than one meaning, s 32(1) of the Charter would require the Tribunal to give the words of the statute the meaning which best accords with the right to freedom of expression under s 15 of the Charter so far as it is possible to do so consistently with the purpose of s 194.[81]
5. The Tribunal has previously held that the right to freedom of expression in s 15(2) of the Charter, in particular the right to seek and receive information and ideas, includes a positive right to access information held by the government.[82]
6. It is clear that Parliament intended to impose some limit on the right of freedom of expression through its enactment of s 194 of the IBAC Act, and consequently any interpretation of this provision will necessarily limit that right.[83] However, it is also clear that Parliament explicitly intended to narrow this limitation through the recent amendments made to s 194 by 'increasing the ability of individuals to access government-held documents'.[84]
7. In my view, the interpretation that the words 'an investigation conducted under this Act' means an investigation actually conducted under the IBAC Act has the least adverse impact upon the right to freedom of expression. This interpretation narrows the scope of documents which are exempt from the reach of the FOI Act, thereby allowing persons greater 'freedom to seek, receive and impart information' as provided for in s 15 of the Charter.
8. Victoria Police's interpretation of s 194 of the IBAC Act, if accepted, would have the effect of exempting a broader class of documents from the FOI Act, imposing a greater limitation on the right to freedom of expression.
9. Consequently, s 32(1) of the Charter provides further support that the interpretation advanced by Mr Marke must be preferred as it best accords with the right to freedom of expression contained within s 15 of the Charter.

1. For the reasons set out above, I have concluded that the Documents held by Victoria Police, which are documents which arise from, and are related to, Victoria Police's investigation of the Substantive Complaint and their investigation of the Referred Complaint, are not documents which are exempt from production under the proper interpretation of s 194(1)(b) of the IBAC Act.
2. I have interpreted s 194(1)(b) as referring to an investigation conducted by the IBAC under the IBAC Act and this does not include an investigation conducted by a party to whom the IBAC refers a complaint under ss 58 and 73 of the IBAC Act, as was submitted by Victoria Police_._ I have determined this on a plain reading of the text of s 194 of the IBAC Act, supported by its statutory context, purpose and legislative history. This interpretation is also consistent with the Charter.
3. Victoria Police's submissions in support of an alternative interpretation of s 194 of the IBAC Act have not persuaded me to form a contrary view. The interpretation advanced by Victoria Police would defeat the meaning of the of the words as they appear in the text as well as the intent of the legislation as amended. The earlier cases relied on by Victoria Police which pre-dated the current form of the legislation are not persuasive, nor are they binding on my decision. Further, I do not agree with the Tribunal's reasoning in the only decision to which I was referred which was determined under the same version of the IBAC Act that applies in this case. I am also not convinced that the presumption of re-enactment arises in relation to s 194 of the IBAC Act because of the changes to the legislation and the history of the provision.
4. In the circumstances, the Tribunal finds that the Documents requested are not excluded from the operation of the FOI Act pursuant to s 194(1)(b) of the IBAC Act_._
5. I note that s 194(1)(b) of the IBAC Act was the only basis upon which it was argued by Victoria Police that the Documents were exempt from the FOI Act.
6. I will hear the parties further on the question of the appropriate form of the order to dispose of the application for review.

[1] By letter dated 18 January 2018 from Victoria Police.

[2] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 32.

[3] Lance Marke, 'Statement of Applicant', Submission in Marke v Victoria Police FOI Division, Z727/2015, 31 August 2016, [2].

[11] Victoria Police FOI Division, 'Section 49 Statement', filed in Marke v Victoria Police FOI Division, Z727/2015, [2].

[12] Under s 49P of the FOI Act, the Information Commissioner makes a fresh decision and that decision has the same effect as a decision of Victoria Police.

[13] Under s 51(2) of the Freedom of Information Act 1982 (Vic) the Information Commissioner is not and cannot be joined as a party to a review under s 50 of the Freedom of Information Act 1982 (Vic), unless it is a review of a decision of the Information Commissioner as the Principal Officer of the Office of the Information Commissioner, which it is not in this case. Under s 55 of the Freedom of Information Act 1982 (Vic), Victoria Police has the onus of establishing that the Documents are exempt documents.

[14] Victoria Police FOI Division, 'Respondent's Further Legal Submissions', Submission in Marke v Victoria Police FOI Division, Z236/2018, 11 July 2018, [15] - [25].

[15] The relevant provision of the Independent Broad-based Anti-corruption Commission Act 2011 (Vic) ('IBAC Act') was inserted as s 109 by s 9 of the Independent Broad-based Anti-corruption Commission Amendment (Investigative Functions) Act 2012 (Vic).

[16] Freedom of Information Amendment (Office of the Victorian Information Commissioner) Act 2017 (Vic) ss 15, 129.

[17] Independent Broad-based Anti-corruption Commission Committee, Parliament of Victoria, Strengthening Victoria's key anti-corruption agencies? (2016).

[18] Section 52 of the IBAC Act provides that 'A person may make a police personnel conduct complaint to the IBAC'.

[19] Independent Broad-based Anti-corruption Commission Committee, Parliament of Victoria, Strengthening Victoria's key anti-corruption agencies? (2016) 77-78 [4.5.1].

[20] Victoria, Parliamentary Debates, Legislative Assembly, 23 June 2016, 2870 (Martin Pakula, Attorney-General).

[21] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 31 [4], 46-47 [47]; Federal Commissioner of Taxation v Consolidated Media Holdings [2012] HCA 55; (2012) 250 CLR 503, 519 [39]; Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664, 671-672 [22]-[23].

[22] Ibid; see also Interpretation of Legislation Act 1984 (Vic) s 35(a).

[23] Victorian Government, Response to recommendations made by the Independent Broad-based Anti-corruption Commission Committee in its 2016 report, 'Strengthening Victoria's key anti-corruption bodies?' (2016).

[24] Legal and Social Issues Committee, Parliament of Victoria, Inquiry into the Freedom of Information Amendment (Office of the Victorian Information Commissioner) Bill 2016 (2017).

1. [25] Zeqaj v Office of Police Integrity [2010] VCAT 479 (21 April 2010); Luck v Independent Broad-based Anti-corruption Commission [2013] VCAT 1805 (10 October 2013); [2014] VSCA 239 (1 April 2014); Risson v Independent Broad-based Anti-corruption Commission [2014] VCAT 742 (16 June 2014). These cases are discussed later at paragraphs [130] - [147].

[26] Victoria Police FOI Division, 'Respondent's Further Legal Submissions', Submission in Marke v Victoria Police FOI Division, Z236/2018, 11 July 2018, 6 [30.1].

[27] Ibid 6 [33] citing Zeqaj v Office of Police Integrity [2010] VCAT 479 (21 April 2010) and Risson v Independent Broad-based Anti-corruption Commission (Review and Regulation) [2014] VCAT 742 (16 June 2014).

[28] Victoria Police FOI Division, 'Respondent's Legal Submissions', Submission in Marke v Victoria Police FOI Division, Z727/2015, 15 September 2016, [6]-[16].

[29] Victoria Police FOI Division, 'Respondent's Further Legal Submissions', Submission in Marke v Victoria Police FOI Division, Z236/2018, 11 July 2018, [32].

[30] Luck v Independent Broad-based Anti-corruption Commission [2013] VCAT 1805 (10 October 2013) [62]; Zeqaj v Ombudsman Victoria [2010] VCAT 1204 (25 June 2010).

[31] Being four PSC File numbers C3-2/604/2014, D14/01287, D14/021830 and D14/020503.

[32] See paragraphs [10]-[32].

[33] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 381 - 382 [69-71] (McHugh, Gummow, Kirby and Hayne JJ).

[34] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); see also Popular Pastimes v Melbourne City Council [2007] VSCA 188; (2007) 19 VR 1, [52]-[54] (Osborn AJA).

[36] IBAC Act s 72 provides for joint or other forms of investigations to be carried out with or in conjunction with the IBAC.

[40] Other investigatory or integrity bodies referred to in the IBAC Act include the Ombudsman (s 73(2)(b)), the Auditor General (s 73(2)(c)); the Victorian Inspectorate (s 73(2)(d)); the Judicial Commission (s 73(2)(da)); the Victorian Workcover Authority (s 73(2)(e)); the Racing Integrity Commissioner (s 73(2)(f)); the Environment Protection Authority (s 73(2)(g)); the Commission for Children and Young People (s 73(2)(h)); the Chief Municipal Inspector (s 73(2)(ha)); and a municipal monitor (s 73(2)(hb)).

[42] The Independent Broad-Based Anti-corruption Commission may also 'conduct' an investigation about corrupt conduct: IBAC Act s 60; investigate the conduct of a judicial officer to be 'conducted' by a sworn IBAC Office: IBAC Act s 61; investigate the conduct of the Chief Commissioner of Police, Deputy Commissioner of Police or an Assistance Commissioner of Police: IBAC Act s 65; may 'conduct' certain investigations in relation to 'protected disclosure complaints': IBAC Act s 66; and may 'conduct an investigation' in coordination with an integrity body or law enforcement agency: IBAC Act s 72.

[46] Bare v Independent Broad-based Anti-corruption Commission [2015] VSCA 197; (2015) 48 VR 129.

[49] Ibid s 57(2)-(4) in relation to notification of complaints received by the Chief Commissioner; s 78 with respect to reporting back to IBAC on the results of investigations of referred matters.

[50] Under s 78(1) of the IBAC Act, s 73 does not apply to a referral to the Chief Commissioner in relation to conduct of a person who is not a member of Victoria Police personnel.

[51] The Chief Commissioner has a similar obligation in relation to 'protected disclosure complaints' under ss 179(1) and 179(4) of the Victoria Police Act 2013 (Vic).

[52] This note is referred to further in the context of discussion of the decision of the Tribunal in Gilmore v Victoria Police FOI Division [2018] VCAT 899 (14 June 2018).

[53] Interpretation of Legislation Act 1984 (Vic) s 36(1)(a).

[54] See paragraph [35].

[55] Freedom of Information Amendment (Office of the Victorian Information Commissioner) Act 2017 (Vic) s 15.

[56] See paragraph [41].

[57] Victoria, Parliamentary Debates, Legislative Assembly, 23 June 2016, 2870 (Martin Pakula, Attorney-General); Explanatory Memorandum, Freedom of Information Amendment (Office of the Victorian Information Commissioner) Bill 2016 at 75-76.

[58] Freedom of Information Act 1982 (Vic) s 31A (note).

[59] Interpretation of Legislation Act 1984 (Vic) s 35(b).

[60] Explanatory Memorandum, Freedom of Information Amendment (Office of the Victorian Information Commissioner) Bill 2016 75-76.

[61] Victoria, Parliamentary Debates, Legislative Assembly, 23 June 2016, 2870 (Martin Pakula, Attorney-General).

[62] Victorian Government, The Victorian Government's response to recommendations made by the Independent Broad-based Anti-corruption Commission Committee in its 2016 report, Strengthening Victoria's key anti-corruption bodies? (August 2016).

[63] Victoria Police FOI Division, 'Respondent's Further Legal Submissions', Submission in Marke v Victoria Police FOI Division, Z236/2018, 11 July 2018, [30.2].

[64] See Brennan v Comcare [1994] FCA 1147; (1994) 50 FCR 555, 573E.

[65] [2010] VCAT 479 (21 April 2010).

[66] [2013] VCAT 1805 (10 October 2013).

[67] [2014] VSCA 239 (1 April 2014).

[68] [2014] VCAT 742 (16 June 2014).

[69] Salvation Army (Victoria) Property Trust v Fern Tree Gully Corporation [1952] HCA 4; (1952) 85 CLR 159, 174 (Dixon, Williams and Webb JJ), 182 (Fullagar J); R v Reynhoudt [1962] HCA 23; (1962) 107 CLR 381, 388 (Dixon CJ); Flaherty v Girgis [1987] HCA 17; (1987) 162 CLR 574, 594 (Mason ACJ, Wilson and Dawson JJ).

[70] Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees [1994] HCA 34; (1994) 181 CLR 96.

[73] [2013] VCAT 1805 (10 October 2013).

[74] Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees [1994] HCA 34; (1994) 181 CLR 96, 107.

[75] [2018] VCAT 899 (14 June 2018). I was also referred to the decision of Brown v Victoria Police [2016] VCAT 539 (11 April 2016) which was decided under the version of the IBAC Act in force prior to the passage of the Amending Act in September 2017 and which can clearly be distinguished on its facts.

[76] Gilmore v Victoria Police FOI Division [2018] VCAT 899 (14 June 2018) [85].

[79] See Interpretation of Legislation Act 1984 (Vic) s 36(3A).

[80] See Re News Corporation Ltd (1987) 15 FCR 227, 240.

[81] See Slaveski v Smith [2012] VSCA 25; (2012) 34 VR 206, 215 [24] citing Momcilovic v Queen (2011) 245 CLR 1, 45-50, [40-50] (French CJ). As freedom of expression is a fundamental freedom recognised by the common law, the principle of legality also applies to support such an interpretation: see Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573, 591-2 [43] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), citing Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 384 [78] (McHugh, Gummow, Kirby and Hayne JJ).

[82] XYZ v Victoria Police [2010] VCAT 255 (16 March 2010) (Bell J).

[83] Neither of the parties made any submissions as to whether, and to what extent, the limits on rights included in their respective interpretations are justified pursuant to ss 7(2) or 15(3) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) ('the Charter'). Additionally, Mr Marke did not go so far as to argue that the any limitation on the right to freedom of expression contained within s 194 of the IBAC Act that which is justifiable by virtue of ss 7(2) or 15(3) of the Charter. I note that the role of s 7(2) of the Charter in interpreting the words of a statute as required by s 32(1) of the Charter remains unclear: see Slaveski v Smith [2012] VSCA 25; (2012) 34 VR 206; Momcilovic v Queen (2011) 245 CLR 1.

[84] See the Statement of Compatibility for the Freedom of Information Amendment (Office of the Victorian Information Commissioner) Bill 2016 (23 June 2018), where the Attorney-General stated that the 'proposed amendments to the FOI Act included in the Bill will increase the ability of individuals to access government-held documents in a reduced timeframe... Therefore it is my opinion that the amendments will enhance, rather than limit, the right to freedom of expression.' at 2867.