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the declaration of complementary witness protection laws by notice in the Commonwealth of Australia Gazette, was repealed by the Crimes Legislation Amendment (Serious and Organised Crime) Act (No. 2) 2010 and replaced by section 3AA.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.
Overview
The Witness Protection (Complementary witness protection laws) Declaration 2011 was enacted to address the need for continued and effective protection for witnesses under state and territory laws, as part of the overarching Witness Protection Act 1994. This Act was introduced by the Parliament of Australia to establish the National Witness Protection Program, administered by the Australian Federal Police (AFP), which safeguards individuals who are in danger due to their involvement in criminal proceedings or their connection to those who are. The 2011 Declaration was necessitated by the amendment of the original Act, which repealed section 3 and introduced section 3AA to allow for legislative instruments to be used for declaring complementary witness protection laws, thereby ensuring public access to such declarations. The Declaration ensures the AFP Commissioner can continue to provide necessary protection and assistance under state and territory laws, facilitating the registration of these declarations on the Federal Register of Legislative Instruments. This legislative instrument is intended to maintain the integrity and effectiveness of witness protection measures across Australia.
Scope and Application
The Witness Protection (Complementary witness protection laws) Declaration 2011 applies to the Witness Protection Act 1994, which provides a statutory basis for the National Witness Protection Program (NWPP) administered by the Australian Federal Police (AFP). The Act enables the protection and assistance of individuals who have provided or agreed to provide evidence in criminal proceedings, or who are related to such individuals, due to the potential danger they face. The Declaration specifically identifies various State and Territory witness protection laws as complementary to the federal Act, allowing the AFP to offer protection and assistance under these laws as well. This includes, for example, the ability to apply to a State court for the issuance of identity documents for participants in the NWPP. The Declaration ensures that the AFP Commissioner can continue to provide protection under these laws, facilitating public access to which laws have been declared complementary. The Declaration does not impact business or restrict competition and comes into effect on the day after it is registered on the Federal Register of Legislative Instruments.
Key Provisions
The Witness Protection (Complementary witness protection laws) Declaration 2011 provides a modern framework for the Australian Federal Police (AFP) to continue its role in the National Witness Protection Program (NWPP). Section 3AA of the Witness Protection Act 1994 empowers the Minister for Justice to declare certain State and Territory witness protection laws as 'complementary witness protection laws'. This declaration ensures that the AFP can effectively arrange protection and assistance for participants in the NWPP under these laws. Specifically, section 3 of the Declaration identifies the relevant complementary laws, including the Witness Protection Act 1995 (NSW), the Witness Protection Act 1991 (Vic), and others from each State and Territory.
The obligations imposed on the parties by this legislation include the requirement for the Minister to formally declare the applicable State and Territory laws as complementary witness protection laws. This formal declaration enables the AFP to engage with these laws to provide necessary protection and assistance to witnesses in danger due to their involvement in criminal proceedings or their relationship to such individuals. The complementary laws facilitate actions such as applying to State courts for the issuance of new identity documents for participants, thereby enhancing the safety and security of those involved.
While the Declaration itself does not outline specific offences or penalties, the overarching Witness Protection Act 1994 and the complementary State and Territory laws may include provisions for offences and penalties related to breaches of witness protection protocols. These may include criminal sanctions for those who attempt to harm or intimidate witnesses, or civil penalties for non-compliance with the protection measures. The exact nature and severity of these penalties are detailed within the individual State and Territory laws, which are recognised as complementary under this Declaration.
The primary aim of the Declaration is to streamline the process of identifying which State and Territory laws are complementary, ensuring that the AFP can continue to provide necessary protection without legal ambiguity. This alignment is crucial for the effective operation of the NWPP and for maintaining public confidence in the safety and security of witnesses who participate in criminal proceedings.