Untitled document

Witness Protection (Amendment) Act 1996

Act No. 58/1996

TABLE OF PROVISIONS

Section Page

1.	Purpose	1
2.	Commencement	2
3.	Principal Act	2
4.	Definitions	2
5.	New sections 3A, 3B and 3C inserted	4

3A.	Victorian witness protection program	4
3B.	Inclusion in the Victorian witness protection program	6
3C.	Special commercial arrangements by Chief
Commissioner	6

6.	Amendment of section 4	6
7.	Memorandum of understanding	6
8.	Amendment of sections 6, 8 and 9	8
9.	New section 10 substituted	9

10. Information not to be disclosed 9

10.	Amendment of sections 11, 12 and 14	11
11.	Section 15 substituted and new sections inserted	12

15.	Special provision in case of marriage	12
16.	Cessation of protection and assistance	13
17.	Notice of involuntary termination, review and appeal	15
18.	When does involuntary termination take effect?	16
19.	Restoration of former identity	17
20.	When does a decision to restore a person's former
identity take effect?	19
21.	Arrangements with approved authorities	20
22.	Authorisation of approved authorities	21
23.	Provision of information to approved authorities	22
24.	Freedom of Information Act 1982	23
25.	Supreme Court—limitation of jurisdiction	24
26.	Transitional provision	24

12. Amendment of definition 24

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NOTES 26

i

Victoria

No. 58 of 1996

Witness Protection (Amendment) Act

†

1996

[Assented to 10 December 1996]

The Parliament of Victoria enacts as follows:

1. Purpose

The purpose of this Act is to amend the Witness

Protection Act 1991—

(a)

to facilitate arrangements and exchange of jurisdictions in relation to witness protection;

(b) to make further provision for the protection of witnesses by the Chief Commissioner of Police;

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(c) to improve the operation of the Act;

(d) to remove the sunset provision.

2. Commencement

(1) This Act (except section 12) comes into operation
on the day on which it receives the Royal Assent.

(2) Subject to sub-section (3), section 12 comes into operation on a day to be proclaimed.

(3) If section 12 does not come into operation before

31 December 1997, it comes into operation on that
day.

No. 15/1991

3. Principal Act

as amended

by No.

In this Act the Witness Protection Act 1991 is	28/1994.
called the Principal Act.

4. Definitions

(1) In section 3 of the Principal Act insert the

following definitions—

' "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 Chairman of the National Crime Authority;
(d)	an authority or body of the Commonwealth or another State that—

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

is authorised to conduct inquiries corruption; and

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(ii) notice published in the
Government Gazette, to be an

is declared by the Minister, by purposes of 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;

"Deputy Ombudsman" means the Deputy

Ombudsman (Police Complaints) appointed
under section 6A of the Ombudsman Act
1973;

"Ombudsman" means the Ombudsman

appointed under section 3 of the

Ombudsman Act 1973;

"register of marriages" means the register of

marriages kept under section 41 of the
Registration of Births Deaths and

Marriages Act 1959;

"State" includes Territory;

"Victorian witness protection program" means

the program established and maintained by
the Chief Commissioner of Police under
section 3A;'.

(2) In section 3 of the Principal Act for the definition of "witness" substitute—

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' "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) authority that is declared by the
Minister, by notice published in
the Government Gazette, to be an

hearings or proceedings before an 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 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.'.

5. New sections 3A, 3B and 3C inserted

After section 3 of the Principal Act insert—

"3A. Victorian witness protection program

(1) The Chief Commissioner of Police, through

the establishment and maintenance of a
Victorian witness protection program, may

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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—

(a) applying for any document necessary—

(i)

to allow the witness or family 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.

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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—

(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 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.".

6. Amendment of section 4

In section 4(1) of the Principal Act after "births" insert "or register of marriages".

7. Memorandum of understanding

(1) In section 5 of the Principal Act, after sub-section

(1) insert—

"(1A) A memorandum of understanding must—

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(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) In section 5(2) of the Principal Act—

(a) paragraph (h) is repealed;

(b) for paragraph (j) substitute—

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

(3) After section 5(2) of the Principal Act insert—

"(3) A memorandum of understanding must

contain a statement advising the witness of Commissioner of Police or another member of the police force in relation to the matters dealt with in the memorandum.

his or her right to complain to the Deputy

(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.

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(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.".

8. Amendment of sections 6, 8 and 9

(1) In the Principal Act—

(a) in section 6(1) after "births" insert "or register of marriages";

(b) in section 8—

(i)  in paragraphs (a) and (b) after "births" insert "or register of marriages";

(ii)  in paragraph (c) after "entry" insert "or original marriage entry";

(c) in section 9(1) after "register of births" insert "or register of marriages".

(2) For section 9(2) of the Principal Act substitute—

"(2) An entry made in the register of births or

register of marriages under this Act can only be cancelled by the Registrar if the Supreme Court, after being satisfied that the witness is no longer included in the Victorian witness

protection program, has made a court order entry be cancelled.".

on the application of the Chief

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9. New section 10 substituted

For section 10 of the Principal Act substitute—

"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 Deputy Ombudsman; or
(c)	to comply with an order of the Supreme Court.
Penalty:	Imprisonment for 10 years.

(2) Despite sub-section (1), the Chief

Commissioner of Police 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.

(3) Subject to sub-section (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—

(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

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

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(d)	information about any member of the police force gained by the person as a result of anything done under this Act.
Penalty:	Imprisonment for 5 years.

(4) Sub-section (3) does not apply to a

disclosure or communication—

(a)	that has been authorised by the Chief Commissioner of Police; or
(b)	that is necessary for the purposes of an investigation by the Deputy Ombudsman; or
(c)	that is necessary to comply with an order of the Supreme Court.

(5) A person must not, without lawful authority, disclose information—

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

(i)  included on the Victorian witness protection program; or

(ii) program conducted by the
Commonwealth or another State

included in a witness protection protection law; or

(b)	that compromises the security of such a person.
Penalty:	Imprisonment for 10 years.".

10. Amendment of sections 11, 12 and 14

(1) In section 11(1) and (2) of the Principal Act after "births" insert "or register of marriages".

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(2) After section 12(1)(d) of the Principal Act

insert—

" ; or

(e) the Ombudsman; or

(f) the Deputy Ombudsman.".

(3) After section 12(3) of the Principal Act insert—

"(4) Nothing in this section prevents the Deputy Ombudsman 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.".

(4) In section 14 of the Principal Act after "register of births" insert "or register of marriages".

11. Section 15 substituted and new sections inserted

For section 15 of the Principal Act substitute—

"15. Special provision in case of marriage

A person who has been provided with a new identity under the Victorian witness protection program must not marry unless—

(a)	the person has given to the Chief Commissioner of Police or an approved authority evidence that satisfies the Chief Commissioner or approved authority of the identity of the person and that the person is of marriageable age; and
(b)	previously, the person has given to the Chief Commissioner or approved authority evidence that satisfies the

if the person has been married authority that the person's previous

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spouse has died or that the previous
marriage has been dissolved or

annulled; and

(c)	the person has given to the Chief Commissioner or approved authority a statutory declaration to the effect that there is no legal impediment to the marriage.
Penalty:	Imprisonment for 6 months.

16. Cessation of protection and assistance

(1) Protection and assistance provided to a

person under the Victorian witness
protection program 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) of the memorandum of understanding

the person deliberately breaches a term 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

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protection and assistance should be
terminated.

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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 sub-section (1)(a), a person may apply
in writing to the Chief Commissioner for a
review of the decision.

(3) If an application is made under sub-section (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 sub-section (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 Deputy Ombudsman.

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(6) The Deputy Ombudsman—

(a)

must determine an appeal under sub- 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—

(a)

if the person's location is not known 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

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Deputy Ombudsman 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 Deputy Ombudsman—has no effect.

(2) A decision of the Deputy Ombudsman under

section 17(6) that protection and assistance to a person be terminated takes effect when the Deputy Ombudsman notifies the person of the decision.

19. Restoration of former identity

(1) If—

(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 sub-section (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 sub-section (3), the Chief Commissioner—

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(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 sub-section (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 Deputy Ombudsman.

(7) The Deputy Ombudsman—

(a)

must determine an appeal under sub- 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

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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.

Penalty: 10 penalty units.

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 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)—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 Deputy Ombudsman under section

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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 Deputy Ombudsman—has no effect.

(2) A decision of the Deputy Ombudsman under section 19(7) that action be taken to restore a person's former identity takes effect when the Deputy Ombudsman 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 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) available to the Chief Commissioner of
Police such statements, transcripts of
evidence and other documents as will

may provide for the authority to make deciding—

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(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.

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 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 sub-

section (1) in relation to an approved
authority within the meaning of paragraph
(a), (b) or (c) of the definition of "approved

authority" in section 3—

(a)	for the purposes of an arrangement referred to in sub-section (1), a person who is a member of the body of which the approved authority is Commissioner (however designated) or Chairman 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.

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(3) If a notice has been published under sub-

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

23.  Provision of information to approved authorities

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 sub-section (2).

(2) If sub-section (1) applies, the Chief

Commissioner of Police may—

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

provide the approved authority with the fingerprints;

(c) other information relating to the person

release to the approved authority such 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 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) who is, or has been, included on
the Victorian witness protection
program or a witness protection
program conducted by the
Commonwealth or another State

the identity or location of a person protection law; or

(ii) into a memorandum of
understanding under section 5 or

the fact that a person has entered understanding; or

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

(iv)  anything done by the Chief Commissioner of Police or another member of the police

force under this Act or a
complementary witness protection
law; or

(d) document discloses any information
received by the Chief Commissioner of
Police from an approved authority

a document to the extent that the witness protection law.

25.  Supreme Court—limitation of jurisdiction

It is the intention of section 12(3) to alter or
vary section 85 of the Constitution Act
1975.

26.  Transitional provision

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

12. Amendment of definition

In section 3 of the Principal Act, in the definition of "register of marriages" for "kept under section 41 of the Registration of Births Deaths and

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Marriages Act 1959" substitute "in the Register maintained under Part 7 of the Births, Deaths and Marriages Registration Act 1996".

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Notes

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NOTES

†

Minister's second reading speech—

Legislative Assembly: 31 October 1996

Legislative Council: 19 November 1996

The long title for the Bill for this Act was "to amend the Witness

Protection Act 1991 and for other purposes."

Constitution Act 1975:

Section 85(5) statement:

Legislative Assembly: 31 October 1996

Legislative Council: 19 November 1996

Absolute majorities:

Legislative Assembly: 14 November 1996

Legislative Council: 4 December 1996