EXPLANATORY STATEMENT
Witness Protection (Complementary witness protection laws) Declaration 2011
Issued by the authority of the Minister for Justice
Witness Protection Act 1994
The Witness Protection Act 1994 (the Act) provides a statutory basis for the National Witness Protection Program (NWPP) administered by the Australian Federal Police (AFP). The NWPP provides protection and assistance to people who are assessed as being in danger because they have given, or have agreed to give, evidence or a statement on behalf of the Crown in criminal or certain other proceedings, or because of their relationship to such persons. For example, if a person gives evidence in a serious or high profile criminal trial, that person’s security, and that of their family, may be at risk as a result.
Section 3 of the Act, which enabled the declaration of complementary witness protection laws by notice in the Commonwealth of Australia Gazette, was repealed by the Crimes Legislation Amendment (Serious and Organised Crime) Act (No. 2) 2010 and replaced by section 3AA. Section 3AA of the Act provides that for the purposes of the Act, the Minister may declare by legislative instrument that a law of a State or Territory is a ‘complementary witness protection law’. This amendment was made to facilitate public access to declarations made under the Act. Under the Legislative Instruments Act 2003, legislative instruments must be registered on the publicly accessible Federal Register of Legislative Instruments (FRLI) in order for them to be valid and enforceable by or against the Commonwealth, or by or against another person or body. Declarations previously made under section 3 of the Act were not legislative instruments, so were not registered on FRLI.
Each State and Territory has its own witness protection legislation. Declaring a law of a State or Territory to be a ‘complementary witness protection law’ allows the AFP Commissioner to arrange or provide protection and other assistance for participants in the NWPP under the complementary law. For example, it allows the AFP to apply to the court of a State with a declared complementary witness protection law for the issue of State identity documents for a participant’s new identity.
Declarations had been made under section 3 in relation to all State and Territory witness protection laws. The Witness Protection (Complementary witness protection laws) Revocation Declaration 2011 revokes each of those declarations upon the commencement of the Witness Protection (Complementary witness protection laws) Declaration 2011 (the Declaration).
The purpose of the Declaration is to ensure that the AFP Commissioner can continue to provide protection and other assistance for participants in the NWPP under State and Territory witness protection laws as necessary and appropriate, while facilitating public access to which laws have been declared to be complementary witness protection laws.
The Declaration commences on the day after it is registered on FRLI.
The AFP was consulted on the Declaration.
The Declaration is not likely to impact on business or restrict competition.
Details of the Declaration are set out in the Attachment.
ATTACHMENT
Details of the Witness Protection (Complementary witness protection laws) Declaration 2011
Section 1
Section 1 provides that the name of the Declaration is the Witness Protection (Complementary witness protection laws) Declaration 2011.
Section 2
Section 2 provides that the Declaration commences on the day after it is registered on the Federal Register of Legislative Instruments.
Section 3
Section 3 provides that the following laws are complementary witness protection laws for the purposes of section 3AA of the Witness Protection Act 1994.
- Witness Protection Act 1995 (NSW)
- Witness Protection Act 1991 (Vic)
- Witness Protection Act 2000 (Qld)
- Witness Protection (Western Australia) Act 1996 (WA)
- Witness Protection Act 1996 (SA)
- Witness Protection Act 2000 (Tas)
- Witness Protection Act 1996 (ACT)
- Witness Protection (Northern Territory) Act (NT)
This enables the AFP Commissioner to provide protection and assistance for participants in the NWPP under those laws. For example, it allows the AFP to apply to the court of a State with a declared complementary witness protection law for the issue of State identity documents for a participant’s new identity.