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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Witness Protection Amendment
Bill 2002
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Witness Protection Act 1995 No 87 2
Schedule 1 Amendments 3
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE COUNCIL, has
finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of NEW
SOUTH WALES.
Clerk of the Parliaments
Legislative Council
2002
New South Wales
Witness Protection Amendment
Bill 2002
Act No , 2002
An Act to amend the Witness Protection Act 1995 to make further provision for the
services to be provided to protected witnesses, the obligations of protected
witnesses, the role of the Ombudsman, offences under the Act and measures for the
protection of witnesses; and for other purposes.
Clause 1 Witness Protection Amendment Bill 2002
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Witness Protection Amendment Act 2002.
2 Commencement
This Act commences on a day or days to be appointed by
proclamation.
3 Amendment of Witness Protection Act 1995 No 87
The Witness Protection Act 1995 is amended as set out in Schedule 1.
Page 2
Witness Protection Amendment Bill 2002
Amendments Schedule 1
Schedule 1 Amendments
(Section 3)
[1] Section 3 Definitions
Insert in alphabetical order:
designated authority for a complementary witness protection
law means the approved authority exercising functions under
that law that is declared by the Minister by order published in
the Gazette to be the designated authority for that law.
[2] Section 5 Witness protection program
Insert after section 5 (2) (e):
(e1) providing to the witness services in the nature of
counselling (such as psychological counselling and drug
and alcohol counselling) and vocational training
services,
[3] Section 5 (2) (f)
Omit the paragraph.
[4] Section 6 Inclusion in the witness protection program
Omit "72 hours" from section 6 (4). Insert instead "7 days".
[5] Section 8 Memorandum of understanding
Omit section 8 (1) (b). Insert instead:
(b) contain a provision to the effect that protection and
assistance under the program may be terminated if the
participant deliberately breaches a term of the
memorandum of understanding or a requirement or
undertaking relating to the witness protection program.
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Witness Protection Amendment Bill 2002
Schedule 1 Amendments
[6] Section 8 (2) (c1)
Insert after section 8 (2) (c):
(c1) the taking, provision and retention of photographs of the
participant,
[7] Section 11A
Insert after section 11:
11A Suspension of protection and assistance
Protection and assistance provided under the witness protection
program to a participant may be suspended by the
Commissioner of Police for a reasonable period determined by
the Commissioner if the Commissioner is satisfied that the
participant has done or intends to do something that limits the
ability of the Commissioner to provide adequate protection to
the person.
Note. For example, the participant may have done something that results
in him or her being in custody, or may intend to travel to a place despite
a warning from the Commissioner not to go there because of the risk of
harm to the participant.
[8] Section 12 Notice of involuntary termination or suspension and
application for review
Omit "under section 11 (2)" from section 12 (1).
Insert instead "under section 11 (2) or 11A".
[9] Section 12 (1)
Insert "or suspended" after "terminated".
[10] Section 12 (2)
Omit "28 days".
Insert instead "14 days (in the case of termination) or 2 days (in the case of
suspension)".
[11] Section 12 (4) and (5)
Insert "or suspend" after "terminate" wherever occurring.
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Witness Protection Amendment Bill 2002
Amendments Schedule 1
[12] Section 12 (5)
Omit "72 hours". Insert instead "7 days".
[13] Section 13 Date on which involuntary termination or suspension takes
effect
Omit "under section 11 (2)" from section 13 (1).
Insert instead "under section 11 (2) or 11A".
[14] Section 13 (1)
Insert "or suspended" after "terminated".
[15] Section 13 (1) (a) and (b)
Omit "period of 28 days" wherever occurring.
Insert instead "appropriate review period".
[16] Section 13 (2)
Insert "or suspended" after "terminated".
[17] Section 13 (3) and (4)
Insert after section 13 (2):
(3) If the Ombudsman has been unable to notify the participant of
the decision despite taking reasonable steps to do so, the
decision of the Ombudsman takes effect when the Ombudsman
notifies the Commissioner of Police that the Ombudsman has
been unable to notify the participant of the decision.
(4) In this section:
appropriate review period means:
(a) if the decision is to terminate protection and
assistance--14 days, or
(b) if the decision is to suspend protection and
assistance--2 days.
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Witness Protection Amendment Bill 2002
Schedule 1 Amendments
[18] Section 15 Application for court order
Omit "The Commissioner of Police may apply" from section 15 (1).
Insert instead "Application may be made".
[19] Section 15 (1) (a1)
Insert after section 15 (1) (a):
(a1) to make a new entry in the register of deaths in respect
of a witness or a relative (by blood or marriage) of a
witness, or
[20] Section 15 (1A)
Insert after section 15 (1):
(1A) Such an application may only be made by:
(a) the Commissioner of Police, or
(b) the designated authority for a complementary witness
protection law.
[21] Section 15 (2)
Omit "Commissioner of Police". Insert instead "applicant".
[22] Section 17 Power of Supreme Court to make order
Insert "or (in the case of an order applied for by the designated authority for
a complementary witness protection law) under that law" after "this Act" in
section 17 (a) (ii).
[23] Section 17 (c)
Omit the paragraph. Insert instead:
(c) a memorandum of understanding has been entered into
between the witness and the Commissioner of Police in
accordance with section 8 or (in the case of an order
applied for by the designated authority for a
complementary witness protection law) between the
witness and that designated authority in accordance with
the corresponding provision of that law, and
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Witness Protection Amendment Bill 2002
Amendments Schedule 1
[24] Section 18 Effect of witness protection order
Insert "or (a1)" after "section 15 (1) (a)".
[25] Section 18 (a)
Omit the paragraph. Insert instead:
(a) a person authorised to do so by the order may make any
entries in a register of births, deaths or marriages that are
necessary to give effect to the order, and
[26] Section 18 (c)
Omit the paragraph. Insert instead:
(c) the Commissioner of Police or (in the case of an order
applied for by the designated authority for a
complementary witness protection law) that designated
authority must maintain records showing details of the
original birth, death or marriage of each person in
respect of whom an entry is made under paragraph (a).
[27] Section 19 Effect of entries made under this Act
Omit "the register of births or the register of marriages" from section 19 (1).
Insert instead "a register of births, deaths or marriages".
[28] Section 19 (2)
Omit the subsection. Insert instead:
(2) An entry made under this Act in a register of births, deaths or
marriages can only be cancelled by the Registrar of Births,
Deaths and Marriages if the Supreme Court, after being
satisfied that the witness is no longer included in the relevant
witness protection program, has made a court order on the
application of the Commissioner of Police or the designated
authority for a complementary witness protection law directing
that the entry be cancelled.
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Witness Protection Amendment Bill 2002
Schedule 1 Amendments
[29] Section 23 Information not to be disclosed
Omit "the register of births or the register of marriages" from section 23 (1).
Insert instead "a register of births, deaths or marriages".
[30] Section 23 (1) (a)
Insert "or a complementary witness protection law" after "this Act".
[31] Section 25 Requirement where participant becomes witness in criminal
proceedings
Omit the section.
[32] Section 26 Identity of participant not to be disclosed in legal
proceedings
Insert after section 26 (2):
(3) This section does not limit the operation of Part 3A
(Proceedings involving persons with new identity).
[33] Part 3A
Insert after section 31:
Part 3A Proceedings involving persons with new
identity
31A Definitions
In this Part:
court includes tribunal, Royal Commission or other
commission of inquiry and the person or body holding or
conducting a relevant proceeding.
protected identity of a protected person means:
(a) in the context of relevant proceedings in which the
protected person is or may be required to give evidence
under the person's new identity--the person's previous
identity, or
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Witness Protection Amendment Bill 2002
Amendments Schedule 1
(b) in the context of relevant proceedings in which the
protected person is or may be required to give evidence
under the person's previous identity--the person's new
identity.
protected person means a person who, having been provided
with a new identity under the witness protection program,
retains that identity whether or not he or she remains a
participant.
relevant proceeding means each of the following:
(a) a proceeding before a court,
(b) an inquest or inquiry under the Coroners Act 1980,
(c) a hearing under the New South Wales Crime
Commission Act 1985,
(d) a hearing under the Police Integrity Commission Act
1996.
31B Requirement if person given new identity becomes a witness in
relevant proceeding
(1) If a protected person is or may be required to give evidence in
a relevant proceeding before a court, whether under the
person's new identity or previous identity, the person must
notify the Commissioner of Police that the person is or may be
required to give evidence in the proceeding.
Maximum penalty: 50 penalty units.
(2) The Commissioner of Police must give the court concerned a
certificate (a non-disclosure certificate) relating to the
protected person.
(3) If the court considers it appropriate in the relevant proceeding,
the court may disclose to each party to the proceeding:
(a) that the court has been given a non-disclosure certificate
relating to a person who may be required to give
evidence in the proceeding, and
(b) what the certificate states.
(4) The court may only disclose what the non-disclosure certificate
states in the absence of any jury empanelled for the proceeding
and the public. When disclosing the certificate's existence, the
court must inform the parties of the effect of the certificate.
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Witness Protection Amendment Bill 2002
Schedule 1 Amendments
31C What non-disclosure certificate must state
(1) The non-disclosure certificate must state:
(a) that the person is, or has been, included in the witness
protection program, and
(b) that the person has been given a new identity under this
Act, and
(c) that the person has not been convicted of any offence
other than an offence stated in the certificate.
(2) The certificate must not include any information that may
enable the protected identity of the person to be revealed.
31D Effect of non-disclosure certificate
(1) On the giving of a non-disclosure certificate in respect of a
protected person:
(a) a question may not be asked in the relevant proceeding
that may lead to the disclosure of the protected identity
of the protected person or where the protected person
lives, and
(b) a witness in the relevant proceeding, including the
protected person, cannot be required to answer a
question, give any evidence, or provide any information,
that may lead to the disclosure of the protected identity
of the protected person or where the protected person
lives, and
(c) a person involved in the relevant proceeding must not in
the relevant proceeding make a statement that discloses
or could disclose the protected identity of the protected
person or where the protected person lives.
(2) This section applies despite any other Act but subject to section
31E.
31E Court may grant leave to disclose relevant information
(1) The court may, on application made to it, give leave to a party
to ask questions of a witness, including the protected person, or
make a statement that, if answered or made, may disclose the
protected person's protected identity or where the protected
person lives.
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Witness Protection Amendment Bill 2002
Amendments Schedule 1
(2) The only parties to whom such leave may be given are as
follows:
(a) for a criminal proceeding--the prosecutor and each
accused person to whom the relevant proceeding relates
or the person's legal representative,
(b) for a civil proceeding--each party to the relevant
proceeding or the party's legal representative,
(c) for another proceeding--each person who has been
given leave to appear in the relevant proceeding or the
person's legal representative,
(d) in any proceedings--a legal practitioner assisting the
court.
(3) The court may direct that the application be heard in the
absence of any jury empanelled for the proceeding and the
public.
(4) The court must not give leave to a party under this section
unless satisfied:
(a) there is some evidence that, if believed, would call into
question the credibility of the protected person, and
(b) it is in the interests of justice for the party to be able to
test the credibility of the protected person, and
(c) it would be impractical to test properly the credibility of
the protected person without knowing the protected
identity of the person.
(5) If the court gives leave, a person may, in accordance with the
leave:
(a) ask a question that may lead to the disclosure of the
protected identity of the protected person or where the
protected person lives, or
(b) answer a question, give evidence, or provide
information that may lead to the disclosure of the
protected identity of the protected person or where the
protected person lives, or
(c) make a statement that discloses or could disclose the
protected identity of the protected person or where the
protected person lives.
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Witness Protection Amendment Bill 2002
Schedule 1 Amendments
(6) If the court gives leave, the court:
(a) must hold the relevant part of the proceeding in the
absence of the public, and
(b) must make an order for the suppression of publication
of evidence given before it that it considers will ensure
that the protected identity of the protected person and
where the protected person lives is not disclosed, and
(c) may make any other order the court considers
appropriate.
(7) A person must not contravene an order made under subsection
(6).
Maximum penalty: 50 penalty units or imprisonment for
12 months, or both.
(8) This section does not does not limit the court's power to punish
for contempt.
[34] Section 32 Offence--disclosures concerning participants
Insert "or in accordance with an order of the Supreme Court under section
34," before "disclose information".
[35] Section 33 Offence--disclosure by participants and others
Omit "participant or a former participant" from section 33 (1).
Insert instead "person who is or was a participant or a witness considered
for inclusion in the witness protection program".
[36] Section 33 (3)
Insert after section 33 (2):
(3) A person is a witness considered for inclusion in the witness
protection program if:
(a) the person is a witness who is the subject of
consideration under section 6 for inclusion in the
witness protection program (even if the Commissioner
subsequently decides not to include the witness), or
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Witness Protection Amendment Bill 2002
Amendments Schedule 1
(b) the person is a witness included in the witness
protection program temporarily under section 10 (even
if the witness does not go on to be included in the
witness protection program).
[37] Section 34 Certain persons not to be required to disclose information
Insert at the end of section 34 (1) (h):
, or
(i) a person or body (or an employee of a person or body)
providing services to or for a participant at the request
of the Commissioner of Police.
[38] Section 34 (2)
Omit "the performance of his or her duties in accordance with this Act".
Insert instead "the exercise of functions under this Act or the protection of
witnesses included in the witness protection program".
[39] Section 40 Immunity from legal proceedings for exercise of functions
under Act
Omit "by this Act".
Insert instead "by or under this Act (including an order of the Supreme
Court under this Act)".
[40] Schedule 1 Savings, transitional and other provisions
Omit "this Act" from clause 1 (1). Insert instead:
the following Acts:
this Act
Witness Protection Amendment Act 2002
[41] Schedule 1, clause 1 (2)
Omit "this Act". Insert instead "the Act concerned".
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Witness Protection Amendment Bill 2002
Schedule 1 Amendments
[42] Schedule 1
Insert at the end of the Schedule:
Part 3 Provisions consequent on Witness Protection
Amendment Act 2002
5 Definition
In this Schedule:
2002 amending Act means the Witness Protection Amendment
Act 2002.
6 Appeals
(1) An amendment made by the 2002 amending Act to section 6
(4) or 12 (5) does not apply in respect of an appeal received
before the commencement of the amendment.
(2) An amendment made by the 2002 amending Act to section 12
(2) does not apply in respect of a notification received before
the commencement of the amendment.
(3) An amendment made by the 2002 amending Act to section 13
does not apply in respect of a decision made before the
commencement of the amendment.
7 Memorandum of understanding
The amendment made by the 2002 amending Act to section 8
(1) does not apply to a memorandum of understanding signed
before the commencement of the amendment.
8 Suspension of protection and assistance
Section 11A extends to apply in respect of a witness who
became a participant before the commencement of that section.
9 Non-disclosure certificates
Part 3A extends to persons who became protected persons
within the meaning of that Part before the commencement of
that Part and also extends to apply in respect of the giving of
evidence after the commencement of that Part in proceedings
that commenced before the commencement of that Part.
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Witness Protection Amendment Bill 2002
Amendments Schedule 1
10 Information disclosure
An amendment made by the 2002 amending Act to section 34
extends to apply in respect of the provision of services before
the commencement of the amendment.
Page 15
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