Witness Protection Act 1991 - legislation.vic.gov.auFILE/91-15a035.docx · Web viewOCPC-VIC, Word...

Version No. 035

Witness Protection Act 1991No. 15 of 1991

Version incorporating amendments as at 7 June 2012

TABLE OF PROVISIONSSection Page

1 Purpose 12 Commencement 13 Definitions 13A Victorian witness protection program 73B Inclusion in the Victorian witness protection program 83C Special commercial arrangements by Chief Commissioner 84 Authority to make new entry in the register of births or register

of marriages 85 Memorandum of understanding 96 Application for court order 117 Power of Supreme Court to make order 118 Effect of authorizing court order 129 Effect of entries made under this Act 1210 Information not to be disclosed 1311 Offences in relation to documents 1512 Immunity from proceedings 1613 Court proceedings under this Act to be closed 1714 Certain provisions of Births, Deaths and Marriages

Registration Act 1996 excluded 1815 Special provision in case of marriage 1816 Cessation of protection and assistance 1917 Notice of involuntary termination, review and appeal 2018 When does involuntary termination take effect? 2119 Restoration of former identity 2220 When does a decision to restore a person's former identity take

effect? 2421 Arrangements with approved authorities 2521A Approved authorities can only act under this Act if

arrangements with Chief Commissioner are in place 2622 Authorisation of approved authorities 2623 Provision of information to approved authorities 2824 Freedom of Information Act 1982 2924A Double jeopardy 29

1

25 Supreme Court—limitation of jurisdiction 3026 Transitional provision 30

═══════════════

ENDNOTES 31

1. General Information 31

2. Table of Amendments 32

3. Explanatory Details 34

2

Version No. 035


Version incorporating amendments as at 7 June 2012

The Parliament of Victoria enacts as follows:

1 Purpose

The purpose of this Act is to facilitate the security of persons who are, or have been, witnesses in criminal proceedings in Victoria or elsewhere in Australia.

2 Commencement

This Act comes into operation on the day on which it receives the Royal Assent.

3 Definitions

(1) In this Act—

approved authority means—

(a) the Commissioner of the Australian Federal Police;

(b) a Commissioner (however designated) of the police force of another State;

(c) the Chief Executive Officer of the Australian Crime Commission;

(d) an authority or body of the Commonwealth or another State that—

(i) is authorised to conduct inquiries or investigations in relation to conduct that constitutes, or is alleged to constitute, criminal

1

S. 1amended by No. 31/2000 s. 4.

S. 3 amended by No. 72/2001 s. 3(Sch. item 13.2) (ILA s. 39B(1)).S. 3(1) def. of approved authority inserted by No. 58/1996 s. 4(1), amended by Nos 18/2002 s. 25(1)(a), 52/2003 s. 52(Sch. 1 item 14(1)(a)).

conduct, misconduct or corruption; and

(ii) is declared by the Minister, by notice published in the Government Gazette, to be an approved authority for the purposes of this Act;

authorizing court order means a court order authorizing the making of an entry under this Act;

complementary witness protection law means a law of the Commonwealth or another State that—

(a) makes provision for the protection of witnesses; and

(b) is declared by the Minister, by notice published in the Government Gazette, to be a complementary witness protection law;

s. 3S. 3(1) def. of Deputy Ombudsman inserted by No. 58/1996 s. 4(1), substituted as def. of Director by No. 63/2004 s. 33(a), amended by No. 34/2008 s. 143(Sch. 2 item 15).

Director means the Director, Police Integrity under section 7 of the Police Integrity Act 2008;

domestic partner of a person means—

(a) a person who is in a registered relationship with the person; or

2

S. 3(1) def. of complement-ary witness protection law inserted by No. 58/1996 s. 4(1).

S. 3(1) def. of domestic partner inserted by No. 72/2001 s. 3(Sch. item 13.1), substituted by No. 12/2008 s. 73(1)(Sch. 1 item 67.1).

s. 3

(b) an adult person to whom the person is not married but with whom the person is in a relationship as a couple where one or each of them provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not include a person who provides domestic support and personal care to the person—

(i) for fee or reward; or

(ii) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation);

member of the family of a witness includes—

(a) a spouse or domestic partner, parent or sibling of the witness; or

(b) a child of the witness or of the witness's spouse or domestic partner;

officer of an approved authority means—

(a) in relation to an approved authority within the meaning of paragraph (a) or (b) of the definition of approved authority—a person who is a member of the body of which the approved authority is Commissioner (however designated);

(ab) in relation to an approved authority within the meaning of paragraph (c) of the definition of approved authority—a

3

S. 3(1) def. of member of the family inserted by No. 72/2001 s. 3(Sch. item 13.1).

S. 3(1) def. of officer of an approved authority inserted by No. 31/2000 s. 5, amended by Nos 18/2002 s. 25(1)(b), 52/2003 s. 52(Sch. 1 item 14(1)(b)(c)).

s. 3

person who is a member of the staff of the Australian Crime Commission;

(b) in relation to an approved authority within the meaning of paragraph (d) of the definition of approved authority—a person who is a member or an officer of the approved authority;

Ombudsman means the Ombudsman appointed under section 3 of the Ombudsman Act 1973;

participant means a person who is included in the Victorian witness protection program;

recognised participant means a person who is included in a witness protection program established under a complementary witness protection law, but who is not included in the Victorian witness protection program;

register of births means the register of births in the Register maintained under Part 7 of the Births, Deaths and Marriages Registration Act 1996;

s. 3S. 3(1) def. of register of marriages inserted by No. 58/1996 s. 4(1), amended by No. 58/1996 s. 12.

register of marriages means the register of marriages in the Register maintained under Part 7 of the Births, Deaths and Marriages Registration Act 1996;

4

S. 3(1) def. of Ombudsman inserted by No. 58/1996 s. 4(1).

S. 3(1) def. of participant inserted by No. 31/2000 s. 5.

S. 3(1) def. of recognised participant inserted by No. 31/2000 s. 5.

S. 3(1) def. of register of births amended by No. 43/1996 s. 65(Sch. item 14.1).

Registrar means the Registrar of Births, Deaths and Marriages;

spouse of a person means a person to whom the person is married;

State includes Territory;

Victorian witness protection program means the program established and maintained by the Chief Commissioner of Police under section 3A;

witness means—

(a) a person who has given, or agreed to give, evidence on behalf of the Crown in—

(i) proceedings for an offence; or

(ii) hearings or proceedings before an authority that is declared by the Minister, by notice published in the Government Gazette, to be an authority to which this paragraph applies; or

(b) a person who has given, or agreed to give, evidence otherwise than as mentioned in paragraph (a) in relation to the commission or possible commission of an offence against a law

5

S. 3(1) def. of Registrar amended by No. 43/1996 s. 65(Sch. item 14.2).

S. 3(1) def. of spouse inserted by No. 72/2001 s. 3(Sch. item 13.1).

S. 3(1) def. of State inserted by No. 58/1996 s. 4(1).

S. 3(1) def. of Victorian witness protection program inserted by No. 58/1996 s. 4(1).

S. 3(1) def. of witness substituted by No. 58/1996 s. 4(2).

s. 3s. 3

of Victoria, the Commonwealth or another State; or

(c) a person who has made a statement to the Chief Commissioner of Police, another member of the police force or an approved authority in relation to an offence against a law of Victoria, the Commonwealth or another State; or

(d) a person who, for any other reason, may require protection or other assistance under this Act.

(2) For the purposes of the definition of domestic partner in subsection (1)—

(a) registered relationship has the same meaning as in the Relationships Act 2008; and

(b) in determining whether persons who are not in a registered relationship are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case; and

(c) a person is not a domestic partner of another person only because they are co-tenants.

3A Victorian witness protection program

(1) The Chief Commissioner of Police, through the establishment and maintenance of a Victorian witness protection program, may take such action as he or she thinks necessary and reasonable to protect the safety and welfare of a witness or a member of the family of a witness.

(2) That action may include—

6

S. 3(2) inserted by No. 72/2001 s. 3(Sch. item 13.2), substituted by No. 12/2008 s. 73(1)(Sch. 1 item 67.2).

S. 3Ainserted by No. 58/1996 s. 5.

s. 3A

(a) applying for any document necessary—

(i) to allow the witness or family member to establish a new identity; or

(ii) otherwise to protect the witness or family member;

(b) relocating the witness or family member;

(c) providing accommodation for the witness or family member;

(d) providing transport for the property of the witness or family member;

(e) doing any other things that the Chief Commissioner of Police considers necessary to ensure the safety of the witness or family member.

(3) The Chief Commissioner of Police must not obtain documentation for a witness or family member that represents that the witness or family member—

(a) has a qualification that he or she does not have; or

(b) is entitled to a benefit that he or she is not entitled to.

3B Inclusion in the Victorian witness protection program

(1) The Chief Commissioner of Police has the sole responsibility of deciding whether to include a witness in the Victorian witness protection program, including cases where an approved authority has requested that a witness be included in the program.

(2) A witness may be included in the Victorian witness protection program only if—

7

S. 3Binserted by No. 58/1996 s. 5.

s. 3B

(a) the Chief Commissioner has decided that the witness be included; and

(b) the witness agrees to be included; and

(c) the Chief Commissioner enters into a memorandum of understanding with the witness in accordance with section 5.

3C Special commercial arrangements by Chief Commissioner

The Chief Commissioner of Police may make commercial arrangements with a person under which a witness or a member of the family of a witness is able to obtain a benefit under a contract or arrangement without revealing his or her former identity.

4 Authority to make new entry in the register of births or register of marriages

(1) A member of the police force or an officer of an approved authority authorized to do so under an authorizing court order may make a new entry in the register of births or register of marriages for the purposes of this Act.

(2) Section 53 of the Births, Deaths and Marriages Registration Act 1996 does not apply in respect of any statement or entry made for the purposes of this Act.

5 Memorandum of understandings. 5

S. 5(1) repealed by No. 31/2000 s. 7(a).

* * * * *

(1A) For the purposes of section 3B(2)(c), a memorandum of understanding between the Chief Commissioner of Police and a witness must—

8

S. 3Cinserted by No. 58/1996 s. 5.

S. 4(1) amended by Nos 58/1996 s. 6, 31/2000 s. 6.

S. 4(2) amended by No. 43/1996 s. 65(Sch. item 14.3).

S. 5(1A) inserted by No. 58/1996 s. 7(1), amended by No. 31/2000 s. 7(b).

(a) set out the basis on which the witness is included in the Victorian witness protection program and details of the protection and assistance that are to be provided; and

(b) contain a provision to the effect that protection and assistance under the program may be terminated if the witness breaches a term of the memorandum of understanding.

(2) A memorandum of understanding may contain provisions relating to—

(a) any outstanding legal obligations of the witness and how they are to be dealt with; and

(b) any legal obligations that the witness may or may not enter into; and

(c) the surrender and issue of passports; and

(d) the issue of any documents relating to the new identity of the witness; and

(e) the prohibition of the witness from engaging in specified activities; and

(f) marriage, family maintenance, taxation, welfare or other social or domestic obligations or relationships; and

(g) any other obligations of the witness; and

* * * * *

(i) if a new identity is to be extended to any members of the family of the witness, provisions relating to paragraphs (a) to (g) in relation to each member of the family to the extent that such provisions are necessary; and

9

S. 5(2)(h) repealed by No. 58/1996 s. 7(2)(a).

s. 5

S. 5(2)(i) amended by No. 31/2000 s. 7(c).

(j) any other matter for which it may be necessary or convenient to make provision.

(3) A memorandum of understanding must contain a statement advising the witness of his or her right to complain to the Director about the conduct of the Chief Commissioner of Police or another member of the police force in relation to the matters dealt with in the memorandum.

(4) A memorandum of understanding must be signed—

(a) by the witness; or

(b) if the witness is under the age of 18, by a parent or guardian of the witness; or

(c) if the witness otherwise lacks legal capacity to sign, by a guardian or other legal personal representative of the witness.

(5) If—

(a) a parent or guardian of a witness has signed a memorandum of understanding because the witness was under the age of 18; and

(b) the memorandum is still operating after the witness turns 18—

the Chief Commissioner of Police may require the witness to sign the memorandum.

6 Application for court orders. 6

S. 6(1) amended by Nos 58/1996 s. 8(1)(a), 31/2000 s. 8(1).

(1) The Chief Commissioner of Police may apply to the Supreme Court for a court order authorizing a nominated member or members of the police force to make a new entry in the register of births or register of marriages in respect of a participant or

10

S. 5(2)(j) substituted by No. 58/1996 s. 7(2)(b).S. 5(3) inserted by No. 58/1996 s. 7(3), amended by No. 63/2004 s. 33(b).

S. 5(4) inserted by No. 58/1996 s. 7(3).

S. 5(5) inserted by No. 58/1996 s. 7(3).

a participant and specified members of the family of the participant.

(1A) An approved authority may apply to the Supreme Court for a court order authorizing a nominated officer or officers of the approved authority to make a new entry in the register of births or register of marriages in respect of a recognised participant or a recognised participant and specified members of the family of the recognised participant.

(2) The Chief Commissioner of Police or an approved authority must provide such evidence as the Supreme Court may require so as to satisfy itself as to the matters specified in section 7.

7 Power of Supreme Court to make order

The Supreme Court may make an authorizing court order if it is satisfied that—

(a) the person named in the application as a witness is a participant or a recognised participant; and

(b) the life or safety of the person or of a member of his or her family may be endangered as a result of the person being a witness; and

* * * * *

(d) the person is likely to comply with the memorandum of understanding that the person has entered into under section 3B(2)(c) or under the provisions of a complementary witness protection law.

8 Effect of authorizing court order

On the making of an authorizing court order—

11

S. 6(1A) inserted by No. 31/2000 s. 8(2).

S. 6(2) amended by No. 31/2000 s. 8(3).

S. 7(a) substituted by No. 31/2000 s. 9(a).

S. 7(c) repealed by No. 31/2000 s. 9(b).

S. 7(d) amended by Nos 31/2000 s. 9(c), 11/2002 s. 3(Sch. 1 item 68).

(a) the member or members of the police force or officer or officers of an approved authority nominated in the authorizing court order may make any entries in the register of births or register of marriages that are necessary to give effect to the order; and

(b) the Registrar is required to give the member or members of the police force or officer or officers of an approved authority nominated in the authorizing court order access to the register of births or register of marriages and to give such assistance as they may require; and

(c) the Chief Commissioner of Police must maintain records showing details of the original birth entry or original marriage entry of each person in respect of whom an entry is made under paragraph (a) by a member or members of the police force.

9 Effect of entries made under this Acts. 8

S. 9(1) amended by Nos 58/1996 s. 8(1)(c), 43/1996 s. 65(Sch. item 14.4).

(1) An entry made in the register of births or register of marriages under this Act has effect as if it were a valid entry made under the Births, Deaths and Marriages Registration Act 1996.

(2) An entry made in the register of births or register of marriages under this Act can be cancelled by the Registrar only if—

(a) in the case of a witness who was a participant—the Supreme Court makes a court order on the application of the Chief Commissioner of Police directing that the entry be cancelled;

12

S. 8(a) amended by Nos 58/1996 s. 8(1)(b)(i), 31/2000 s. 10(a).

S. 8(b) amended by No. 58/1996 s. 8(1)(b)(i), substituted by No. 31/2000 s. 10(b).

S. 8(c) amended by Nos 58/1996 s. 8(1)(b)(ii), 31/2000 s. 10(c).

S. 9(2) substituted by Nos 58/1996 s. 8(2), 31/2000 s. 11.

(b) in the case of a witness who was a recognised participant—the Supreme Court makes a court order on the application of an approved authority directing that the entry be cancelled.

(3) The Supreme Court may make an order under subsection (2) only if it is satisfied that the witness is no longer a participant or a recognised participant, as the case requires.

10 Information not to be disclosed

(1) A person must not, either directly or indirectly, make a record of, disclose, or communicate to another person any information relating to the making of an entry in the register of births or the register of marriages under this Act, unless it is necessary to do so—

(a) for the purposes of this Act; or

(b) for the purposes of an investigation by the Director; or

(c) to comply with an order of the Supreme Court.

Penalty:Level 5 Imprisonment (Maximum 10 years)

(2) Despite subsection (1), the Chief Commissioner of Police or an approved authority or an officer of an approved authority may disclose the former identity of a witness or a member of the family of a witness for the purpose of obtaining documents relating to the new identity of the witness or family member.

13

S. 9(3) inserted by No. 31/2000 s. 11.

S. 10 substituted by No. 58/1996 s. 9.

s. 10

S. 10(1) amended by No. 31/2000 s. 12(1)(a).

S. 10(1)(b) amended by No. 63/2004 s. 33(b).

S. 10(2) amended by No. 31/2000 s. 12(1)(b).

(3) Subject to subsection (4), a person who is or has been a witness or a member of the family of a witness must not, either directly or indirectly, disclose or communicate to another person, in Victoria or elsewhere—

(a) the fact that he or she or a member of his or her family has entered a memorandum of understanding under section 5; or

(b) details of the memorandum of understanding; or

(c) information relating to anything done by the Chief Commissioner of Police or another member of the police force or an approved authority or an officer of an approved authority under this Act; or

(d) information about any member of the police force or an approved authority or an officer of an approved authority gained by the person as a result of anything done under this Act.

Penalty:Level 6 Imprisonment (Maximum 5 years).

(4) Subsection (3) does not apply to a disclosure or communication—

(a) that has been authorised by the Chief Commissioner of Police or an approved authority; or

(b) that is necessary for the purposes of an investigation by the Director; or

(c) that is necessary to comply with an order of the Supreme Court.

(5) A person must not, without lawful authority, disclose information in Victoria or elsewhere—

14

S. 10(3) amended by No. 31/2000 s. 12(1) (c)(i)(iii).

S. 10(3)(c) amended by No. 31/2000 s. 12(1)(c)(ii).

S. 10(3)(d) amended by No. 31/2000 s. 12(1)(c)(ii).

s. 10

S. 10(4)(a) amended by No. 31/2000 s. 12(1)(d).

S. 10(4)(b) amended by No. 63/2004 s. 33(b).

S. 10(5) substituted by No. 31/2000 s. 12(2).

(a) about the identity or location of a person who is or has been a participant; or

(b) that compromises the security of such a person.


(6) A person must not, without lawful authority, disclose information in Victoria—

(a) about the identity or location of a person who is or has been a recognised participant; or

(b) that compromises the security of such a person.


11 Offences in relation to documentss. 11

S. 11(1) amended by No. 58/1996 s. 10(1).

(1) Whilst an entry made in the register of births or register of marriages under this Act continues in force, a person in respect of whom the entry is made must not use or obtain any document issued by the Registrar which is based on the previous entry.

Penalty:10 penalty units.

(2) If an entry made in the register of births or register of marriages under this Act is cancelled, the Registrar must notify in writing the person in respect of whom the entry was made that the entry has been cancelled.

(3) A person who has been notified under subsection (2) must within 14 days of being notified return to the Registrar any document issued by the

15

S. 10(6) inserted by No. 31/2000 s. 12(2).

S. 11(2) amended by No. 58/1996 s. 10(1).

Registrar which is based on that entry and which is in the person's possession.


12 Immunity from proceedings

(1) This section applies to any person who is or has been—

(a) the Registrar; or

(b) a person employed or appointed under section 40 of the Registration of Births Deaths and Marriages Act 1959; or

(ba) a person appointed or employed under section 7 of the Births, Deaths and Marriages Registration Act 1996; or

(c) the Chief Commissioner of Police; or

(d) a member of the police force; or

(e) the Ombudsman; or

(f) the Director; or

(g) an officer of an approved authority.

16

s. 12

S. 12(1)(ba) inserted by No. 43/1996 s. 65(Sch. item 14.5).

S. 12(1)(d) amended by No. 58/1996 s. 10(2).

S. 12(1)(e) inserted by No. 58/1996 s. 10(2).

S. 12(1)(f) inserted by No. 58/1996 s. 10(2), amended by Nos 31/2000 s. 13, 63/2004 s. 33(b).

S. 12(1)(g) inserted by No. 31/2000 s. 13.

(2) Unless the Supreme Court makes a court order which provides to the contrary, or the proceedings relate to an offence under this Act, a person to whom this section applies cannot be required in any proceedings in any court or tribunal to produce any document or to divulge or communicate any matter or thing relating to the performance of his or her duties in accordance with this Act.

(3) No action or proceedings can be brought against any person to whom this section applies in respect of any act, matter or thing done by that person in the course of his or her duties in accordance with this Act.

(4) Nothing in this section prevents the Director from investigating a complaint in relation to the conduct of the Chief Commissioner of Police or another member of the police force in relation to this Act.

13 Court proceedings under this Act to be closed

The Supreme Court must make an order under section 18 of the Supreme Court Act 1986 in relation to any proceedings for an order under section 7 or 10 of this Act.

14 Certain provisions of Births, Deaths and Marriages Registration Act 1996 excluded

Part 4 and section 43(3) of the Births, Deaths and Marriages Registration Act 1996 do not apply to or in respect of any entry made in the register of births or register or marriages, or to any proceedings taken, under this Act.

15 Special provision in case of marriage

If—

(a) a participant or recognised participant who has been provided with a new identity under

17

S. 12(4) inserted by No. 58/1996 s. 10(3), amended by No. 63/2004 s. 33(b).

s. 13

S. 14 amended by Nos 58/1996 s. 10(4), 43/1996 s. 65(Sch. item 14.6).

S. 15 amended by No. 28/1994 s. 3, substituted by Nos 58/1996 s. 11, 31/2000 s. 14.

s. 14

the Victorian witness protection program wishes to marry; and

(b) the participant or recognised participant has given to the Chief Commissioner of Police or an approved authority evidence that satisfies the Chief Commissioner or approved authority—

(i) that the participant or recognised participant is of marriageable age; and

(ii) of the identity of the participant or recognised participant; and

(c) in the case of a participant or recognised participant who has been married previously—the participant or recognised participant has given to the Chief Commissioner or approved authority evidence that satisfies the Chief Commissioner or approved authority that the previous spouse has died or that the marriage has been dissolved or annulled; and

(d) the participant or recognised participant has given to the Chief Commissioner or approved authority a statutory declaration to the effect that there is no legal impediment to the marriage and the Chief Commissioner or approved authority is not aware of any legal impediment to the marriage—

the Chief Commissioner or approved authority may give a certificate to a Registrar stating that the Chief Commissioner or approved authority has received the evidence referred to in paragraphs (b) and (c) and the statutory declaration referred to in paragraph (d).

16 Cessation of protection and assistance

(1) Protection and assistance provided to a person under the Victorian witness protection program

18

S. 16inserted by No. 58/1996 s. 11.

s. 16

must be terminated by the Chief Commissioner of Police if the person requests in writing that it be terminated.

(2) Protection and assistance provided to a person under the Victorian witness protection program may be terminated by the Chief Commissioner of Police if—

(a) the person deliberately breaches a term of the memorandum of understanding or a requirement or undertaking relating to the program; or

(b) the person's conduct or threatened conduct is, in the opinion of the Chief Commissioner, likely to threaten the security or compromise the integrity of the program; or

(c) the circumstances that gave rise for the need for protection and assistance for the person cease to exist—

and the Chief Commissioner is of the opinion that, in the circumstances, the protection and assistance should be terminated.

17 Notice of involuntary termination, review and appeal

(1) If the Chief Commissioner of Police decides under section 16(2) to terminate protection and assistance to a person he or she must—

(a) take reasonable steps to notify the person of the decision; and

(b) notify the relevant approved authority (if any) of the decision.

(2) Within 28 days after receiving notification under subsection (1)(a), a person may apply in writing to the Chief Commissioner for a review of the decision.

19


s. 17

(3) If an application is made under subsection (2), the Chief Commissioner—

(a) must review the decision and give the person a reasonable opportunity to state his or her case; and

(b) after the review, must confirm or reverse the decision; and

(c) after doing so, must inform the person in writing.

(4) If the Chief Commissioner confirms the decision, he or she must inform the person—

(a) of the reasons for the confirmation; and

(b) of the person's rights under subsection (5).

(5) Within 3 days after being informed of the confirmation of a decision to terminate protection and assistance, a person may appeal to the Director.

(6) The Director—

(a) must determine an appeal under subsection (5) within 14 days after receiving it; and

(b) in doing so, may make any decision that could have been made by the Chief Commissioner.

18 When does involuntary termination take effect?

(1) A decision of the Chief Commissioner of Police under section 16(2) to terminate protection and assistance to a person—

20

S. 17(5) amended by No. 63/2004 s. 33(b).

S. 17(6) amended by No. 63/2004 s. 33(b).

S. 17(6)(a) amended by No. 55/2009 s. 62.


s. 18

(a) if the person's location is not known and the Chief Commissioner has taken reasonable steps to notify them of the decision but has been unable to do so—takes effect at the end of the period of 28 days after those steps were commenced; or

(b) if the person does not apply for a review of the decision in accordance with section 17(2)—takes effect at the end of the period of 28 days after the person receives the notification; or

(c) if the person applies for a review of the decision in accordance with section 17(2) and the Chief Commissioner notifies them that the decision has been reversed—has no effect; or

(d) if the person applies for a review of the decision in accordance with section 17(2), the Chief Commissioner notifies them that the decision has been confirmed and they do not appeal to the Director under section 17(5)—takes effect on the expiration of 3 days after the Chief Commissioner notifies the person of the confirmation of the decision; or

(e) if the person appeals to the Director—has no effect.

(2) A decision of the Director under section 17(6) that protection and assistance to a person be terminated takes effect when the Director notifies the person of the decision.

19 Restoration of former identity

(1) If—

21

S. 18(1)(d) amended by No. 63/2004 s. 33(b).

S. 18(1)(e) amended by No. 63/2004 s. 33(b).

S. 18(2) amended by No. 63/2004 s. 33(b).


s. 19

(a) a person has been provided with a new identity under the Victorian witness protection program; and

(b) protection and assistance to the person under the program are terminated—

the Chief Commissioner of Police, if he or she considers it appropriate to do so, may take such action as is necessary to restore the person's former identity.

(2) The Chief Commissioner must take reasonable steps to notify the person of a decision under subsection (1).

(3) If the Chief Commissioner proposes to take action to restore a person's identity, the person may apply in writing to the Chief Commissioner for a review of the decision.

(4) If an application is made under subsection (3), the Chief Commissioner—

(a) must review the decision and give the person a reasonable opportunity to state his or her case; and

(b) after the review, must confirm or reverse the decision; and

(c) after doing so, must inform the person in writing.

(5) If the Chief Commissioner confirms the decision, he or she must inform the person—

(a) of the reasons for the confirmation; and

(b) of the person's rights under subsection (6).

(6) Within 3 days after being informed of the confirmation of a decision to take action to restore a person's former identity, the person may appeal to the Director.

s. 19

22

S. 19(6) amended by No. 63/2004 s. 33(b).

S. 19(7) amended by No. 63/2004 s. 33(b).

(7) The Director—

(a) must determine an appeal under subsection (6) within 72 hours after receiving it; and

(b) in doing so, may make any decision that could have been made by the Chief Commissioner.

(8) If the Chief Commissioner—

(a) takes action under this section to restore a person's former identity; and

(b) notifies the person in writing that they are required to return to the Chief Commissioner all documents provided to them that relate to the new identity provided under the Victorian witness protection program—

the person must not, without reasonable excuse, refuse or fail to return those documents to the Chief Commissioner within 14 days after receiving the notice.


20 When does a decision to restore a person's former identity take effect?

(1) A decision of the Chief Commissioner of Police under section 19 to take action to restore a person's former identity—

(a) if the person's location is not known and the Chief Commissioner has taken reasonable steps to notify them of the decision but has been unable to do so—takes effect at the end of the period of 28 days after those steps were commenced; or

(b) if the person does not apply for a review of the decision in accordance with section 19(3)

23


s. 20

—takes effect at the end of the period of 28 days after the person receives the notification; or

(c) if the person applies for a review of the decision in accordance with section 19(3) and the Chief Commissioner notifies them that the decision has been reversed—has no effect; or

(d) if the person applies for a review of the decision in accordance with section 19(3), the Chief Commissioner notifies them that the decision has been confirmed and they do not appeal to the Director under section 19(6)—takes effect on the expiration of 3 days after the Chief Commissioner notifies the person of the confirmation of the decision; or

(e) if the person appeals to the Director—has no effect.

(2) A decision of the Director under section 19(7) that action be taken to restore a person's former identity takes effect when the Director notifies the person of the decision.

21 Arrangements with approved authorities

(1) The Chief Commissioner of Police may make arrangements with an approved authority about any matter in connection with the administration of a complementary witness protection law.

(2) Without limiting the coverage of those arrangements, they—

(a) may provide for the Chief Commissioner of Police or a member of the police force to perform functions or exercise powers

24

S. 20(1)(d) amended by No. 63/2004 s. 33(b).

S. 20(1)(e) amended by No. 63/2004 s. 33(b).

S. 20(2) amended by No. 63/2004 s. 33(b).


s. 21

conferred by a complementary protection law;

(b) must include procedures under which the authority shares with the State the costs incurred under those arrangements;

(c) may provide for the authority to make available to the Chief Commissioner of Police such statements, transcripts of evidence and other documents as will assist the Chief Commissioner in deciding—

(i) whether to provide protection or assistance to a person under this Act;

(ii) what protection and assistance is appropriate for a person;

(d) may confer powers and functions under complementary witness protection laws on the Chief Commissioner of Police;

(e) must include requirements for the training of officers of the authority in the making of entries in the register of births and register of marriages to ensure that the integrity of those registers is maintained;

(f) must include requirements on the authority to maintain records showing details of the original birth entry or original marriage entry of each person in respect of whom an entry is made under section 8(a) by an officer or officers of the authority.

21A Approved authorities can only act under this Act if arrangements with Chief Commissioner are in place

An approved authority or an officer of an approved authority may perform a function or

25

S. 21(2)(e) inserted by No. 31/2000 s. 15.

S. 21(2)(f) inserted by No. 31/2000 s. 15.

S. 21A inserted by No. 31/2000 s. 16.

s. 21A

exercise a power under this Act only if arrangements between the Chief Commissioner of Police and the approved authority under section 21 are in force.

22 Authorisation of approved authorities

(1) The Minister, by notice published in the Government Gazette, may authorise an approved authority to perform functions or exercise powers conferred on the Chief Commissioner of Police under this Act for the purposes of any arrangement entered into by the Chief Commissioner under section 21 or the corresponding provision of a complementary witness protection law.

(2) If a notice has been published under subsection (1) in relation to an approved authority within the meaning of paragraph (a) or (b) of the definition of approved authority in section 3—

(a) for the purposes of an arrangement referred to in subsection (1), a person who is a member of the body of which the approved authority is Commissioner (however designated) may perform any function or exercise any power conferred on a member of the police force under this Act; and

(b) the provisions of this Act apply to the person as if he or she were a member of the police force.

(2A) If a notice has been published under subsection (1) in relation to an approved authority within the meaning of paragraph (c) of the definition of approved authority in section 3—

(a) for the purposes of an arrangement referred to in subsection (1), a person who is a member of the staff of the Australian Crime Commission may perform any function or

26


S. 22(2) amended by No. 52/2003 s. 52(Sch. 1 item 14(2)(a)).

S. 22(2)(a) amended by Nos 18/2002 s. 25(2), 52/2003 s. 52(Sch. 1 item 14(2)(b)).

S. 22(2A) inserted by No. 52/2003 s. 52(Sch. 1 item 14(3)).

exercise any power conferred on a member of the police force under this Act; and


(3) If a notice has been published under subsection (1) in relation to an approved authority within the meaning of paragraph (d) of the definition of approved authority in section 3—

(a) for the purposes of an arrangement referred to in subsection (1), a person who is a member or an officer of the approved authority may perform any function or exercise any power conferred on a member of the police force under this Act; and


23 Provision of information to approved authorities

(1) If—

(a) a person has been provided with a new identity or relocated under this Act; and

(b) an approved authority notifies the Chief Commissioner of Police that the person is under investigation for, or has been arrested for or is charged with, an offence against a law of the Commonwealth or another State the maximum penalty for which is or includes imprisonment for a period of more than 1 year—

the Chief Commissioner of Police may do any or all of the things in subsection (2).

27

s. 22


s. 23

S. 23(1) amended by No. 31/2000 s. 20.

(2) If subsection (1) applies, the Chief Commissioner of Police may—

(a) release to the approved authority the person's new identity or location;

(b) provide the approved authority with the person's criminal record and fingerprints;

(c) release to the approved authority such other information relating to the person as the Chief Commissioner considers appropriate in the circumstances;

(d) if the Chief Commissioner considers it appropriate in the circumstances, allow officers of the approved authority to interview members of the police force in relation to the person.

24 Freedom of Information Act 1982

Despite anything to the contrary in the Freedom of Information Act 1982, that Act does not apply to—

(a) a document, whether created before, on or after the commencement of this section, to the extent that the document discloses information about—

(i) the identity or location of a person who is, or has been, a participant or a recognised participant; or

(ii) the fact that a person has entered into a memorandum of understanding under section 5 or the details of a memorandum of understanding; or

(iii) the making of an entry on the register of births or the register of marriages under this Act; or

28


s. 24

S. 24(a)(i) substituted by No. 31/2000 s. 17(a)(i).

(iv) anything done by the Chief Commissioner of Police or another member of the police force or an approved authority or an officer of an approved authority under this Act or a complementary witness protection law; or

(b) a document to the extent that the document discloses any information received by the Chief Commissioner of Police from an approved authority under this Act or a complementary witness protection law.

24A Double jeopardy

If an act or omission is both an offence under this Act and an offence under a law of the Commonwealth, or of another State, or of a Territory, a person who—

(a) is convicted of the offence under that law; or

(b) is found by a court to have committed the offence under that law but is not convicted—

is not liable to be proceeded against for the offence under this Act.

25 Supreme Court—limitation of jurisdiction

It is the intention of section 12(3), as it applies to persons specified in section 12(1) as amended by section 13 of the Witness Protection (Amendment) Act 2000, to alter or vary section 85 of the Constitution Act 1975.

26 Transitional provision

(1) A person who has entered a memorandum of understanding with the Chief Commissioner of Police that is in force immediately before the commencement of section 11 of the Witness Protection (Amendment) Act 1996 is taken to be a witness included on the Victorian witness

29

S. 24(a)(iv) amended by No. 31/2000 s. 17(a)(ii).

S. 24(d) re-numbered as s. 24(b) by No. 31/2000 s. 17(b).

S. 24A inserted by No. 31/2000 s. 18.

S. 25inserted by No. 58/1996 s. 11, substituted by No. 31/2000 s. 19.

S. 26inserted by No. 58/1996 s. 11, amended by No. 52/2003 s. 52(Sch. 1 item 14(4)) (ILA s. 39B(1)).

s. 25

protection program and the memorandum of understanding continues to have effect after that commencement according to its tenor.

(2) Arrangements that were in force between the Chief Commissioner of Police and the Chair of the National Crime Authority under section 21 immediately before 1 January 2003 continue in force for the purposes of this Act as if they were arrangements made by the Chief Commissioner of Police with the Chief Executive Officer of the Australian Crime Commission.

═══════════════

30

S. 26(2) inserted by No. 52/2003 s. 52(Sch. 1 item 14(4)).

ENDNOTES

1. General InformationMinister's second reading speech—

Legislative Assembly: 15 November 1990

Legislative Council: 20 March 1991

The long title for the Bill for this Act was "A Bill to make provision for matters relating to witness protection and for other purposes.".

The Witness Protection Act 1991 was assented to on 23 April 1991 and came into operation on 23 April 1991: section 2.

Endnotes


31

2. Table of AmendmentsThis Version incorporates amendments made to the Witness Protection Act 1991 by Acts and subordinate instruments.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Witness Protection (Amendment) Act 1994, No. 28/1994Assent Date: 24.5.94Commencement Date: 22.4.94: s. 2Current State: All of Act in operation

Births, Deaths and Marriages Registration Act 1996, No. 43/1996Assent Date: 26.11.96Commencement Date: S. 65(Sch. item 14) on 2.10.97: Government Gazette

2.10.97 p. 2731Current State: This information relates only to the provision/s

amending the Witness Protection Act 1991

Witness Protection (Amendment) Act 1996, No. 58/1996Assent Date: 10.12.96Commencement Date: All of Act (except s. 12) on 10.12.96: s. 2(1); s. 12 on

2.10.97: Government Gazette 2.10.97 p. 2731Current State: All of Act in operation

Witness Protection (Amendment) Act 2000, No. 31/2000Assent Date: 30.5.00Commencement Date: 31.5.00: s. 2Current State: All of Act in operation

Statute Law Further Amendment (Relationships) Act 2001, No. 72/2001Assent Date: 7.11.01Commencement Date: S. 3(Sch. item 13) on 20.12.01: Government Gazette

20.12.01 p. 3127Current State: This information relates only to the provision/s


Statute Law (Further Revision) Act 2002, No. 11/2002Assent Date: 23.4.02Commencement Date: S. 3(Sch. 1 item 68) on 24.4.02: s. 2(1)Current State: This information relates only to the provision/s


National Crime Authority (State Provisions) (Amendment) Act 2002, No. 18/2002Assent Date: 21.5.02Commencement Date: S. 25 on 22.5.02: s. 2Current State: This information relates only to the provision/s


Endnotes


32

Australian Crime Commission (State Provisions) Act 2003, No. 52/2003Assent Date: 16.6.03Commencement Date: S. 52(Sch. 1 item 14) on 16.10.03: Government

Gazette 16.10.03 p. 2624Current State: This information relates only to the provision/s


Major Crime Legislation (Office of Police Integrity) Act 2004, No. 63/2004Assent Date: 12.10.04Commencement Date: S. 33 on 16.11.04: Special Gazette (No. 237) 16.11.04

p. 1Current State: This information relates only to the provision/s


Relationships Act 2008, No. 12/2008Assent Date: 15.4.08Commencement Date: S. 73(1)(Sch. 1 item 67) on 1.12.08: s. 2(2)Current State: This information relates only to the provision/s


Police Integrity Act 2008, No. 34/2008Assent Date: 1.7.08Commencement Date: S. 143(Sch. 2 item 15) on 5.12.08: Special Gazette

(No. 340) 4.12.08 p. 1Current State: This information relates only to the provision/s


Justice Legislation Further Amendment Act 2009, No. 55/2009Assent Date: 22.9.09Commencement Date: S. 62 on 30.10.09: Government Gazette 29.10.09

p. 2729Current State: This information relates only to the provision/s


–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Endnotes


33

3. Explanatory DetailsNo entries at date of publication.

Endnotes


34

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