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New South Wales
Witness Protection Bill 1995
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.*
Overview of Bill
The object of this Bill is to authorise the Commissioner of Police to operate
a witness protection program in New South Wales.
Outline of provisions
Part 1 Preliminary
Clause 1 sets out the name (also called the short title) of the proposed Act.
Clause 2 provides that the proposed Act will commence on a day or days
to be proclaimed.
Clause 3 contains definitions for the purposes of the proposed Act.
* Amended in committee-see table at end of volume.
Clause 4 defines who is a witness for the purposes of the proposed Act.
The definition includes family members of a witness if they require
protection or assistance under the proposed Act.
Part 2
Witness protection program
Clause 5 authorises the Commissioner of Police, through a witness
protection program, to provide for the safety and welfare of witnesses.
Clause 6 gives the Commissioner the sole responsibility of deciding
whether to include a witness in the program. A witness must agree to be
included and must enter into a memorandum of understanding.
Clause 7 specifies the things to which the Commissioner must have regard
in deciding whether to include a witness in the program.
Clause 8 specifies the scope and requirements of a memorandum of
understanding and makes provision for the manner of its execution.
Clause 9 enables a memorandum of understanding to be varied with the
consent of the witness and the Commissioner.
Clause 10 enables the provision of temporary protection to a witness
pending full assessment for inclusion in the program.
Clause 11 enables the protection and assistance provided to a witness under
the program to be terminated at the request of the witness or by decision of
the Commissioner.
Clause 12 enables a witness to obtain a review of the decision of the
Commissioner to terminate the provision to the witness of protection and
assistance under the program.
Clause 13 specifies the time at which a decision of the Commissioner to
terminate the protection and assistance provided to a witness under the
program takes effect.
Part 3
Protecting witnesses from identification
Clause 14 empowers the Commissioner to apply for documents that will
enable a witness to change his or her identity or that will otherwise protect a
witness.
Clause 15 enables the Commissioner to apply for a Supreme Court order (a
witness protection order) to make entries in the register of births or the
register of marriages or for the issue of identifying documents for a witness
in the witness's new identity.
Explanatory note page 2
Clause 16 provides that the Supreme Court is to conduct its proceedings
under this Part of the proposed Act in the absence of the public.
Clause 17 specifies the matters about which the Supreme Court must be
satisfied before it can make a witness protection order.
Clause 18 specifies the action that may or must be taken in order to give
effect to a witness protection order.
Clause 19 validates the making of entries in the register of births or the
register of marriages in accordance with a witness protection order and
regulates the circumstances in which those entries may be cancelled.
Clause 20 imposes restrictions on the marriage (or remarriage) of a witness
who has been provided with a new identity.
Clause 21 sets out the procedure by which the former identity of a witness
who has been provided with a new identity may be restored.
Clause 22 makes it an offence to use a document issued by the Registrar of
Births, Deaths and Marriages relating to the former identity of a witness who
has been provided with a new identity.
Clause 23 makes it an offence to reveal the change in a witness's identity.
Clause 24 enables a witness who has been provided with a new identity to
refuse to disclose his or her former identity if the witness would otherwise
be required by law to do so.
Clause 25 makes provision for the disclosure to a court in criminal
proceedings brought against a witness who has been provided with a new
identity of the witness's criminal record under his or her former identity.
Clause 26 establishes procedures to protect the identity of a witness who is
called to give evidence before a court, tribunal or commission.
Clause 27 prevents new identifying documentation being provided to a
witness if it represents that the witness has a qualification that he or she does
not have or is entitled to a benefit that he or she is not entitled to.
Clause 28 enables the Commissioner to make commercial arrangements for
a witness so as not to reveal his or her former identity.
Clause 29 enables the Commissioner to take action to ensure the rights of a
witness are protected and that a witness meets his or her legal obligations.
Clause 30 enables the Commissioner to take action to ensure that a witness
does not avoid obligations incurred by, or restrictions imposed on, the
witness before the witness was provided with a new identity.
Explanatory note page 3
Clause 31 enables the Commissioner to prevent money paid to a witness
under the witness protection program from being taken from the witness
under the Confiscation of Proceeds of Crime Act 1989.
Part 4
Miscellaneous
Clause 32 makes it an offence to disclose information about the identity or
location of a person who is, or has been, a witness under protection under
the proposed Act or a complementary witness protection law of another
Australian jurisdiction or to disclose information that compromises the
security of such a person.
Clause 33 makes it an offence for a person who is, or has been, a witness
under protection to disclose that he or she, or a member of his or her family,
has entered into a memorandum of understanding under the proposed Act or
to disclose information obtained as a result of certain things done under the
proposed Act.
Clause 34 protects persons engaged in the administration of the proposed
Act from being compelled to disclose information obtained in the course of
their administration.
Clause 35 controls the issue of New South Wales identity documents to
persons on witness protection programs conducted by the Commonwealth,
another State or a Territory.
Clause 36 enables the Commissioner to make arrangements with other
police and law enforcement agencies throughout Australia (approved
authorities) about matters connected with the administration of witness
protection laws of other Australian jurisdictions.
Clause 37 enables the Minister administering the proposed Act to authorise
approved authorities to exercise functions conferred on the Commissioner
for the purposes of any arrangement made under clause 36.
Clause 38 enables the Commissioner to give information to approved
authorities concerning witnesses who have been provided with a new
identity or relocated under the proposed Act.
Clause 39 enables the Commissioner to delegate functions under the
proposed Act to certain members of the Police Service.
Clause 40 confers an immunity from legal proceedings on persons
exercising functions in good faith under the proposed Act.
Explanatory note page 4
Clause 41 enables proceedings for offences (other than for an offence
under clause 32) to be dealt with summarily before a Local Court. An
offence under clause 32 may be dealt with summarily unless the prosecuting
authority or the person charged with the offence elects to have the offence
dealt with on indictment.
Clause 42 enables regulations to be made for the purposes of the proposed
Act.
Clause 43 excludes the application of certain provisions of the Births,
Deaths and Marriages Registration Act I995 to action taken under the
proposed Act to change the identity of a witness.
Clause 44 provides that the proposed Act does not affect any arrangements
for the protection of witnesses under the New South Wales Crime
Commission Act 1985 or the Independent Commission Against Corruption
Act 1988.
Clause 45 makes an amendment to the Criminal Procedure Act 1986 to
deal with the disposal of offences under clause 32.
Clause 46 gives effect to the schedule of savings, transitional and other
provisions.
Clause 47 requires the proposed Act to be reviewed after 5 years to
determine whether its policy objectives remain valid and whether its terms
remain appropriate for securing those objectives.
Schedule 1 contains savings, transitional and other provisions consequent
on the enactment of the proposed Act.
Explanatory note page 5