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This is a Bill, not an Act. For current law, see the Acts databases.
TASMANIA
__________
WITNESS (IDENTITY PROTECTION) BILL 2006
__________
CONTENTS
PART 1 PRELIMINARY
1. Short title
2. Commencement
3. Interpretation
4. Meaning of reckless
PART 2 WITNESS IDENTITY PROTECTION CERTIFICATES FOR
OPERATIVES
5. Application of Part
6. Witness identity protection certificate giving
7. Form of witness identity protection certificate
8. Filing and notification
9. Effect of witness identity protection certificate
10. Orders to protect operative's identity, &c.
11. Disclosure of operative's identity, &c., despite certificate
12. Directions to jury
13. Witness identity protection certificate cancellation
14. Permission to give information disclosing operative's identity,
&c.
15. Disclosure offences
16. Reports about witness identity protection certificates
[Bill 37]-I
PART 3 EVIDENCE BY PEOPLE IN WITNESS PROTECTION
PROGRAM
17. Interpretation
18. Non-disclosure certificates
19. What non-disclosure certificate must state
20. Effect of non-disclosure certificate
21. Disclosure of protected person's identity despite certificate
PART 4 MUTUAL RECOGNITION UNDER CORRESPONDING
LAWS
22. Recognition of witness identity protection certificates under
corresponding laws
23. Recognition of non-disclosure certificates under corresponding
laws
PART 5 GENERAL
24. Delegation
25. Regulations
26. Administration of Act
2
WITNESS (IDENTITY PROTECTION) BILL 2006
(Brought in by the Minister for Justice and Workplace
Relations, the Honourable Steven Kons)
A BILL FOR
An Act to facilitate, for law enforcement purposes,
investigations in relation to criminal activity, including
investigations extending beyond this jurisdiction,
by providing for the protection of the identity of operatives
and facilitating mutual recognition of witness identity
protection certificates under corresponding laws
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
PART 1 PRELIMINARY
1. Short title
This Act may be cited as the Witness (Identity
Protection) Act 2006.
2. Commencement
This Act commences on a day to be proclaimed.
[Bill 37] 3
Witness (Identity Protection) Act 2006
Act No. of
s. 3 Part 1 Preliminary
3. Interpretation
(1) In this Act, unless the contrary intention
appears
"assumed name", of an operative, see
section 7(1)(a)(i);
"Australian Crime Commission" means the
Australian Crime Commission
established by the Australian Crime
Commission Act 2002 of the
Commonwealth;
"chief officer" means the person for the time
being holding office as
(a) in relation to the Police Service,
the Commissioner of Police; or
(b) in relation to the Australian
Crime Commission, the Chief
Executive Officer of the
Australian Crime Commission;
"conduct" includes any act or omission;
"corresponding law" means a law of another
jurisdiction that corresponds to this Act,
and includes a law of another jurisdiction
that is declared by the regulations to
correspond to this Act;
"corresponding non-disclosure certificate"
means a certificate given under a
provision of a corresponding law that
corresponds to section 18(2);
4
Witness (Identity Protection) Act 2006
Act No. of
Part 1 Preliminary s. 3
"corresponding witness identity protection
certificate" means a certificate given
under a provision of a corresponding law
that corresponds to section 6;
"court" includes any tribunal or person
authorised by law or consent of parties to
receive evidence;
"court name", for an operative in relation to a
proceeding, means a name (other than the
operative's real name) or code used to
identify the operative in the proceeding;
"criminal activity" means conduct that
involves the commission of an offence by
one or more persons;
"investigation" means an investigation in
relation to criminal activity, including an
investigation extending beyond this
jurisdiction;
"jurisdiction" means the Commonwealth or a
State or Territory of the Commonwealth;
"law enforcement agency" means
(a) the Police Service; or
(b) the Australian Crime
Commission;
"lawyer" means a legal practitioner within the
meaning of the Legal Profession Act
1993;
5
Witness (Identity Protection) Act 2006
Act No. of
s. 3 Part 1 Preliminary
"non-disclosure certificate" means a
certificate given under section 18(2);
"operative" means a person who is or was
(a) authorised to acquire and use an
assumed identity under the Police
Powers (Assumed Identities) Act
2006; or
(b) a participant in a controlled
operation under the Police
Powers (Controlled Operations)
Act 2006;
"party", to a proceeding, means
(a) for a criminal proceeding, the
prosecutor and each accused
person; or
(b) for a civil proceeding, each
person who is a party to the
proceeding; or
(c) for any other proceeding, each
person who may appear or give
evidence in the proceeding;
"proceeding" means any criminal, civil or
other proceeding or inquiry, reference or
examination in which by law or consent
of parties evidence is or may be given,
and includes an arbitration;
"this jurisdiction" means Tasmania;
6
Witness (Identity Protection) Act 2006
Act No. of
Part 1 Preliminary s. 4
"witness identity protection certificate"
means a certificate given under section 6.
(2) For the purposes of this Act
(a) anything permitted to be done by a party
to a proceeding may be done by the
party's lawyer; and
(b) any requirement to give something to a
party to a proceeding is satisfied by
giving the thing to, or notifying, the
party's lawyer.
4. Meaning of reckless
(1) A person is "reckless" in relation to a
circumstance if
(a) the person is aware of a substantial risk
that the circumstance exists or will exist;
and
(b) having regard to the circumstances
known to the person, it is unjustifiable to
take the risk.
(2) A person is "reckless" in relation to a result if
(a) the person is aware of a substantial risk
that the result will happen; and
(b) having regard to the circumstances
known to the person, it is unjustifiable to
take the risk.
7
Witness (Identity Protection) Act 2006
Act No. of
s. 4 Part 1 Preliminary
(3) It is a question of fact as to whether taking a risk
is unjustifiable.
8
Witness (Identity Protection) Act 2006
Act No. of
Part 2 Witness Identity Protection Certificates for Operatives s. 5
PART 2 WITNESS IDENTITY PROTECTION
CERTIFICATES FOR OPERATIVES
5. Application of Part
(1) This Part applies to a proceeding in which an
operative is, or may be, required to give
evidence obtained as an operative.
(2) To remove any doubt, this Part does not affect
the operation of the common law in relation to
the protection of the identity of a person who is
not an operative who gives or intends to give
evidence in a proceeding.
6. Witness identity protection certificate giving
(1) The chief officer of a law enforcement agency
may give a certificate for an operative of the
agency in relation to a proceeding if
(a) the operative is, or may be required, to
give evidence in the proceeding; and
(b) the chief officer is satisfied on reasonable
grounds that the disclosure in the
proceeding of the operative's identity or
where the operative lives is likely to
(i) endanger the safety of the
operative or someone else; or
(ii) prejudice any investigation.
9
Witness (Identity Protection) Act 2006
Act No. of
s. 7 Part 2 Witness Identity Protection Certificates for Operatives
(2) The chief officer must make all reasonable
enquiries to enable him or her to ascertain the
information required to be included in the
certificate by section 7.
(3) A decision to give a witness identity protection
certificate
(a) is final; and
(b) cannot be impeached for informality or
form; and
(c) cannot be appealed against, reviewed,
called into question, quashed or
invalidated in any court.
(4) Subsection (3) does not prevent a decision to
give a witness identity protection certificate
being called into question in the course of any
proceedings of a disciplinary nature against the
person who made the decision.
7. Form of witness identity protection certificate
(1) A witness identity protection certificate for an
operative of a law enforcement agency in
relation to a proceeding must state the following:
(a) if the operative
(i) is known to a party to the
proceeding or a party's lawyer by
a name other than the operative's
real name, that name (the
"assumed name"); or
10
Witness (Identity Protection) Act 2006
Act No. of
Part 2 Witness Identity Protection Certificates for Operatives s. 7
(ii) is not known to any party to the
proceeding or any party's lawyer
by a name, the operative's court
name for the proceeding;
(b) the period during which the operative
was involved in the investigation to
which the proceeding relates;
(c) the name of the agency;
(d) the date of the certificate;
(e) the grounds for giving the certificate;
(f) whether the operative has been convicted
or found guilty of an offence, in this
jurisdiction or elsewhere, and, if so,
particulars of each offence;
(g) whether any charges against the
operative for an offence are outstanding,
in this jurisdiction or elsewhere, and, if
so, particulars of each charge;
(h) if the operative is or was a law
enforcement officer
(i) whether the operative has been
found guilty of professional
misconduct and, if so, particulars
of each finding; and
(ii) whether any allegations of
professional misconduct against
the operative are outstanding and,
11
Witness (Identity Protection) Act 2006
Act No. of
s. 7 Part 2 Witness Identity Protection Certificates for Operatives
if so, particulars of each
allegation;
(i) whether, to the knowledge of the person
giving the certificate, a court has made
any adverse comment about the
operative's credibility and, if so,
particulars of the comment;
(j) whether, to the knowledge of the person
giving the certificate, the operative has
made a false representation when the
truth was required and, if so, particulars
of the representation;
(k) if there is anything else known to the
person giving the certificate that may be
relevant to the operative's credibility,
particulars of the thing.
(2) A witness identity protection certificate for an
operative must not contain information that may
allow the operative's identity, or where the
operative lives, to be revealed.
(3) For the purposes of this section
(a) a charge against a person for an offence
is "outstanding" until the charge is finally
dealt with in any of the following ways:
(i) the charge is withdrawn;
(ii) the charge is dismissed by a
court;
12
Witness (Identity Protection) Act 2006
Act No. of
Part 2 Witness Identity Protection Certificates for Operatives s. 7
(iii) the person is discharged by a
court;
(iv) the person is acquitted or found
guilty of the offence by a court;
and
(b) an allegation of professional misconduct
against a person is "outstanding" if the
allegation has not been finally dealt with
in accordance with the Police Service Act
2003 or the Australian Crime
Commission Act 2002 of the
Commonwealth.
(4) The Annulled Convictions Act 2003 does not
apply to the disclosure of information under
subsection (1)(f) or (g).
(5) In this section
"false representation" does not include a
representation made under an authority
under
(a) the Police Powers (Assumed
Identities) Act 2006; or
(b) the Police Powers (Controlled
Operations) Act 2006;
"professional misconduct" means
misconduct or a breach of discipline
under
(a) the Police Service Act 2003 or the
Australian Crime Commission
13
Witness (Identity Protection) Act 2006
Act No. of
s. 8 Part 2 Witness Identity Protection Certificates for Operatives
Act 2002 of the Commonwealth;
or
(b) a law of another jurisdiction that
corresponds to the Police Service
Act 2003; or
(c) a law of a foreign country that
corresponds to the Police Service
Act 2003.
8. Filing and notification
(1) A witness identity protection certificate for an
operative in relation to a proceeding must be
filed in the court before the operative gives
evidence in the proceeding.
(2) The person who files the certificate must give a
copy of it to each party to the proceeding at least
14 days (or such shorter period as is agreed to by
the party) before the day on which the operative
is to give evidence.
(3) The court may order the person filing the
certificate to give a copy of it to someone else
stated in the order.
9. Effect of witness identity protection certificate
(1) This section applies if
14
Witness (Identity Protection) Act 2006
Act No. of
Part 2 Witness Identity Protection Certificates for Operatives s. 9
(a) a witness identity protection certificate
for an operative is filed in accordance
with section 8(1); and
(b) either
(i) a copy of the certificate is given
to each party in accordance with
section 8(2) and to each person in
accordance with an order under
section 8(3) (if any); or
(ii) the court gives leave for this
section to apply despite non-
compliance with section 8(2) or
(3).
(2) If this section applies
(a) the operative may give evidence in the
proceeding under the assumed name, or
court name, stated in the certificate; and
(b) subject to section 11
(i) a question must not be asked of a
witness, including the operative,
that may lead to the disclosure of
the operative's identity or where
the operative lives; and
(ii) a witness, including the
operative, cannot be required to
(and must not) answer a question,
give evidence or provide
information that discloses, or may
lead to the disclosure of, the
15
Witness (Identity Protection) Act 2006
Act No. of
s. 10 Part 2 Witness Identity Protection Certificates for Operatives
operative's identity or where the
operative lives; and
(iii) a person involved in the
proceeding must not make a
statement that discloses, or may
lead to the disclosure of, the
operative's identity or where the
operative lives.
(3) For the purposes of this section, a person
involved in a proceeding includes
(a) the court; and
(b) a party to the proceeding; and
(c) a person given leave to be heard or make
submissions in the proceeding; and
(d) a lawyer representing a person referred to
in paragraph (b) or (c) or a lawyer
assisting the court in the proceeding; and
(e) any other officer of the court or person
assisting the court in the proceeding; and
(f) a person acting in the execution of any
process or the enforcement of any order
in the proceeding.
10. Orders to protect operative's identity, &c.
(1) The court in which a witness identity protection
certificate is filed may make any order it
considers necessary or desirable to protect the
16
Witness (Identity Protection) Act 2006
Act No. of
Part 2 Witness Identity Protection Certificates for Operatives s. 11
identity of the operative for whom the certificate
is given or to prevent the disclosure of where the
operative lives.
(2) A person is guilty of an offence if
(a) the person knows that, or is reckless as to
whether, an order has been made under
subsection (1); and
(b) the person intentionally, knowingly or
recklessly contravenes the order.
Penalty: Imprisonment for a term not exceeding
2 years.
(3) Subsection (2) does not limit the court's power
to punish for contempt.
11. Disclosure of operative's identity, &c., despite
certificate
(1) This section applies if a witness identity
protection certificate for an operative in relation
to a proceeding is filed in a court.
(2) A party to the proceeding, or a lawyer assisting
the court in the proceeding, may apply to the
court
(a) for leave
(i) to ask a question of a witness,
including the operative, that may
lead to the disclosure of the
17
Witness (Identity Protection) Act 2006
Act No. of
s. 11 Part 2 Witness Identity Protection Certificates for Operatives
operative's identity or where the
operative lives; or
(ii) for a person involved in the
proceeding to make a statement
that discloses, or may lead to the
disclosure of, the operative's
identity or where the operative
lives; or
(b) for an order requiring a witness,
including the operative, to answer a
question, give evidence or provide
information that discloses, or may lead to
the disclosure of, the operative's identity
or where the operative lives.
(3) The court may
(a) give leave for the party or lawyer to do
anything mentioned in subsection (2)(a);
and
(b) make an order requiring a witness to do
anything mentioned in subsection (2)(b).
(4) However, the court must not give leave or make
an order unless satisfied about each of the
following:
(a) there is evidence that, if accepted, would
substantially call into question the
operative's credibility;
(b) it would be impracticable to test properly
the credibility of the operative without
allowing the risk of disclosure of, or
18
Witness (Identity Protection) Act 2006
Act No. of
Part 2 Witness Identity Protection Certificates for Operatives s. 11
disclosing, the operative's identity or
where the operative lives;
(c) it is in the interests of justice for the
operative's credibility to be able to be
tested.
(5) If there is a jury in the proceeding, the
application must be heard in the absence of the
jury.
(6) Unless the court considers that the interests of
justice require otherwise, the court must be
closed when
(a) the application is made; and
(b) if leave is given or an order is made, the
question is asked (and answered), the
evidence is given, the information is
provided or the statement is made.
(7) The court must make an order suppressing the
publication of anything said when
(a) the application is made; and
(b) if leave is given or an order is made, the
question is asked (and answered), the
evidence is given, the information is
provided or the statement is made.
(8) Nothing in subsection (7) prevents the taking of
a transcript of court proceedings, but the court
may make an order for how the transcript is to be
dealt with, including an order suppressing its
publication.
19
Witness (Identity Protection) Act 2006
Act No. of
s. 12 Part 2 Witness Identity Protection Certificates for Operatives
(9) The court may make any other order it considers
appropriate to protect the operative's identity or
to prevent the disclosure of where the operative
lives.
(10) A person is guilty of an offence if
(a) the person knows that, or is reckless as to
whether, an order has been made under
subsection (7), (8) or (9); and
(b) the person intentionally, knowingly or
recklessly contravenes the order.
Penalty: Imprisonment for a term not exceeding
2 years.
(11) Subsection (10) does not limit the court's power
to punish for contempt.
12. Directions to jury
(1) This section applies if
(a) a witness identity protection certificate
for an operative in relation to a
proceeding is filed in a court; and
(b) there is a jury in the proceeding; and
(c) the operative gives evidence.
(2) The court must (unless it considers it
inappropriate) direct the jury not to give the
operative's evidence any more or less weight, or
draw any adverse inferences against the
20
Witness (Identity Protection) Act 2006
Act No. of
Part 2 Witness Identity Protection Certificates for Operatives s. 13
defendant or another party to the proceeding,
because
(a) there is a witness identity protection
certificate for the operative; or
(b) the court has made an order under
section 10 or section 11(7), (8) or (9).
13. Witness identity protection certificate cancellation
(1) This section applies if the chief officer of a law
enforcement agency gives a witness identity
protection certificate for an operative of the
agency in relation to a proceeding.
(2) The chief officer must cancel the witness
identity protection certificate if the chief officer
considers that it is no longer necessary or
appropriate to prevent the disclosure of the
operative's identity or where the operative lives.
(3) If the chief officer cancels the certificate after it
has been filed in a court and before the matter
has been finalised by the court, the chief officer
must immediately give notice to the court and
each party to the proceeding, in writing, that the
certificate has been cancelled.
14. Permission to give information disclosing
operative's identity, &c.
(1) This section applies if the chief officer of a law
enforcement agency gives a witness identity
21
Witness (Identity Protection) Act 2006
Act No. of
s. 15 Part 2 Witness Identity Protection Certificates for Operatives
protection certificate for an operative of the
agency in relation to a proceeding.
(2) The chief officer may, in writing, permit a
person to give information (otherwise than in the
proceeding) that discloses, or may lead to the
disclosure of, the operative's identity or where
the operative lives if the chief officer considers it
necessary or appropriate for the information to
be given.
(3) The permission
(a) must name the person who may give the
information; and
(b) must name the person to whom the
information may be given; and
(c) must state the information that may be
given; and
(d) may state how the information may be
given.
15. Disclosure offences
(1) A person commits an offence if
(a) a witness identity protection certificate
for an operative in relation to a
proceeding has been given; and
(b) the person knows that, or is reckless as to
whether, the certificate has been given;
and
22
Witness (Identity Protection) Act 2006
Act No. of
Part 2 Witness Identity Protection Certificates for Operatives s. 15
(c) the person intentionally, knowingly or
recklessly does something (the
"disclosure action") that discloses, or is
likely to lead to the disclosure of, the
operative's identity or where the
operative lives; and
(d) the person knows that, or is reckless as to
whether, the certificate has not been
cancelled under section 13 before the
person does the disclosure action; and
(e) the person knows that, or is reckless as to
whether, the disclosure action is not
(i) authorised by leave or an order
under section 11; or
(ii) permitted under section 14.
Penalty: Imprisonment for a term not exceeding
2 years.
(2) A person is guilty of an offence against this
subsection if the person commits an offence
against subsection (1) in circumstances in which
the person
(a) intends to endanger the health or safety
of any person or prejudice the effective
conduct of an investigation; or
(b) knows that, or is reckless as to whether,
the disclosure action
(i) endangers or will endanger the
health or safety of any person; or
23
Witness (Identity Protection) Act 2006
Act No. of
s. 16 Part 2 Witness Identity Protection Certificates for Operatives
(ii) prejudices or will prejudice the
effective conduct of an
investigation.
Penalty: Imprisonment for a term not exceeding
10 years.
16. Reports about witness identity protection
certificates
(1) As soon as practicable after the end of each
financial year, the chief officer of a law
enforcement agency must submit to the Minister
and the Minister administering the Police
Service Act 2003 a report about witness identity
protection certificates given by the chief officer
during that year.
(2) The report must include the following:
(a) the number of witness identity protection
certificates given;
(b) on what basis the chief officer was
satisfied about the matters mentioned in
section 6(1)(b) for each certificate;
(c) if leave was given or an order made
under section 11 in a proceeding in
which a witness identity protection
certificate for an operative of the agency
was filed, details of the proceeding that
relate to the leave or order;
(d) if a witness identity protection certificate
was cancelled under section 13, the
24
Witness (Identity Protection) Act 2006
Act No. of
Part 2 Witness Identity Protection Certificates for Operatives s. 16
reasons why the certificate was
cancelled;
(e) if a permission was given under
section 14, the reasons why the
permission was given;
(f) any other information relating to witness
identity protection certificates and the
administration of this Act that the
Minister considers appropriate.
(3) A report must not include information that
discloses, or may lead to the disclosure of, an
operative's identity, or where the operative lives,
unless the witness identity protection certificate
for the operative has been cancelled.
(4) The Minister is to cause a copy of the report to
be laid before each House of Parliament within
15 sitting-days from the day on which the report
is received by the Minister.
25
Witness (Identity Protection) Act 2006
Act No. of
s. 17 Part 3 Evidence by People in Witness Protection Program
PART 3 EVIDENCE BY PEOPLE IN WITNESS
PROTECTION PROGRAM
17. Interpretation
In this Part
"protected identity" of a protected person,
means
(a) for a proceeding 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
(b) for a proceeding 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 given a new identity under
the Witness Protection Act 2000, keeps
the identity whether or not the person
remains a participant in the witness
protection program;
"witness protection program" means a
witness protection program under the
Witness Protection Act 2000.
26
Witness (Identity Protection) Act 2006
Act No. of
Part 3 Evidence by People in Witness Protection Program s. 18
18. Non-disclosure certificates
(1) If a protected person is or may be required to
give evidence in a proceeding in a court, whether
under the person's new identity or previous
identity, the person must notify the chief officer
of the law enforcement agency responsible for
the witness protection program that the person is
or may be required to give evidence in the
proceeding.
(2) The chief officer must give a certificate for the
protected person in relation to the proceeding,
and file a copy with the court.
(3) A protected person is guilty of an offence if he
or she
(a) knows that, or is reckless as to whether,
he or she is or may be required to give
evidence in a proceeding in a court; and
(b) intentionally, knowingly or recklessly
fails to notify the chief officer under
subsection (1).
Penalty: Fine not exceeding 50 penalty units.
(4) In this section
"court" includes a court, within the meaning
of this Act, of another jurisdiction.
27
Witness (Identity Protection) Act 2006
Act No. of
s. 19 Part 3 Evidence by People in Witness Protection Program
19. What non-disclosure certificate must state
(1) A non-disclosure certificate for a protected
person 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 the Witness Protection Act
2000; and
(c) that the person has not been convicted or
found guilty of any offence other than an
offence mentioned in the certificate.
(2) The non-disclosure certificate must not include
information that discloses, or may lead to the
disclosure of, the person's protected identity or
where the person lives.
20. Effect of non-disclosure certificate
(1) This section applies if a non-disclosure
certificate for a protected person in relation to a
proceeding is filed in a court in this jurisdiction.
(2) If this section applies, in the proceeding
(a) a question must not be asked of a
witness, including the protected person,
that may lead to the disclosure of the
protected person's protected identity or
where the protected person lives; and
28
Witness (Identity Protection) Act 2006
Act No. of
Part 3 Evidence by People in Witness Protection Program s. 20
(b) a witness, including the protected person,
cannot be required to (and must not)
answer a question, give evidence or
provide information that discloses, or
may lead to the disclosure of, the
protected person's protected identity or
where the protected person lives; and
(c) a person involved in the proceeding must
not make a statement that discloses, or
may lead to the disclosure of, the
protected person's protected identity or
where the protected person lives.
(3) For the purposes of this section, a person
involved in the proceeding includes a person
referred to in section 9(3).
(4) The court may disclose to each party to the
proceeding
(a) that the court has been given a non-
disclosure certificate for a person who
may be required to give evidence in the
proceeding; and
(b) what the certificate states.
(5) The court may only disclose what the non-
disclosure certificate states in the absence of the
jury (if any) and the public.
(6) If the court makes a disclosure about the non-
disclosure certificate under subsection (4), the
court must also inform the parties of the effect of
the certificate.
29
Witness (Identity Protection) Act 2006
Act No. of
s. 21 Part 3 Evidence by People in Witness Protection Program
(7) This section applies despite any other Act, but
subject to section 21.
21. Disclosure of protected person's identity despite
certificate
(1) This section applies if a non-disclosure
certificate for a protected person in relation to a
proceeding is filed in a court in this jurisdiction.
(2) A party to the proceeding, or a lawyer assisting
the court in the proceeding, may apply to the
court
(a) for leave
(i) to ask a question of a witness,
including the protected person,
that may lead to the disclosure of
the protected person's protected
identity or where the protected
person lives; or
(ii) for a person involved in the
proceeding to make a statement
that discloses, or may lead to the
disclosure of, the protected
person's protected identity or
where the protected person lives;
or
(b) for an order requiring a witness,
including the protected person, to answer
a question, give evidence or provide
information that discloses, or may lead to
30
Witness (Identity Protection) Act 2006
Act No. of
Part 3 Evidence by People in Witness Protection Program s. 21
the disclosure of, the protected person's
protected identity or where the protected
person lives.
(3) The court may
(a) give leave for the party or lawyer to do
anything mentioned in subsection (2)(a);
and
(b) make an order requiring a witness to do
anything mentioned in subsection (2)(b).
(4) However, the court must not give leave or make
an order unless satisfied about each of the
following:
(a) there is evidence that, if accepted, would
substantially call into question the
protected person's credibility;
(b) it would be impracticable to test properly
the credibility of the protected person
without allowing the risk of disclosure
of, or disclosing, the protected person's
protected identity or where the protected
person lives;
(c) it is in the interests of justice for the
protected person's credibility to be able
to be tested.
(5) If there is a jury in the proceeding, the
application must be heard in the absence of the
jury.
31
Witness (Identity Protection) Act 2006
Act No. of
s. 21 Part 3 Evidence by People in Witness Protection Program
(6) Unless the court considers that the interests of
justice require otherwise, the court must be
closed when
(a) the application is made; and
(b) if leave is given or an order is made, the
question is asked (and answered), the
evidence is given, the information is
provided or the statement is made.
(7) The court must make an order suppressing the
publication of anything said when
(a) the application is made; and
(b) if leave is given or an order is made, the
question is asked (and answered), the
evidence is given, the information is
provided or the statement is made.
(8) Nothing in subsection (7) prevents the taking of
a transcript of court proceedings, but the court
may make an order for how the transcript is to be
dealt with, including an order suppressing its
publication.
(9) The court may make any other order it considers
appropriate to protect the protected person's
protected identity or to prevent the disclosure of
where the protected person lives.
(10) A person is guilty of an offence if
(a) the person knows that, or is reckless as to
whether, an order has been made under
subsection (7), (8) or (9); and
32
Witness (Identity Protection) Act 2006
Act No. of
Part 3 Evidence by People in Witness Protection Program s. 21
(b) the person intentionally, knowingly or
recklessly contravenes the order.
Penalty: Imprisonment for a term not exceeding
2 years.
(11) Subsection (10) does not limit the court's power
to punish for contempt.
33
Witness (Identity Protection) Act 2006
Act No. of
s. 22 Part 4 Mutual Recognition under Corresponding Laws
PART 4 MUTUAL RECOGNITION UNDER
CORRESPONDING LAWS
22. Recognition of witness identity protection
certificates under corresponding laws
The following provisions apply, with any
necessary changes, to a corresponding witness
identity protection certificate as if it were a
witness identity protection certificate given
under section 6:
(a) section 8 (Filing and notification);
(b) section 9 (Effect of witness identity
protection certificate);
(c) section 10 (Orders to protect operative's
identity, &c.);
(d) section 11 (Disclosure of operative's
identity, &c., despite certificate);
(e) section 12 (Directions to jury);
(f) section 15 (Disclosure offences).
23. Recognition of non-disclosure certificates under
corresponding laws
The following provisions apply, with any
necessary changes, to a corresponding non-
disclosure certificate that is filed with a court in
this jurisdiction, as if it were a non-disclosure
certificate given under section 18(2):
34
Witness (Identity Protection) Act 2006
Act No. of
Part 4 Mutual Recognition under Corresponding Laws s. 23
(a) section 20 (Effect of non-disclosure
certificate);
(b) section 21 (Disclosure of protected
person's identity despite certificate).
35
Witness (Identity Protection) Act 2006
Act No. of
s. 24 Part 5 General
PART 5 GENERAL
24. Delegation
(1) Except as provided by this section (and despite
any other Act or law to the contrary), the
functions of a chief officer under this Act may
not be delegated to any other person.
(2) A chief officer may delegate any of the chief
officer's functions under this Act (except this
power of delegation) to a senior officer of the
law enforcement agency.
(3) In this section
"senior officer" means a person for the time
being holding office as
(a) in relation to the Police Service, a
police officer of or above the
rank of Deputy Commissioner; or
(b) in relation to the Australian
Crime Commission, the Director
National Operations of the
Australian Crime Commission or
another office of the Australian
Crime Commission that is
prescribed by the regulations.
36
Witness (Identity Protection) Act 2006
Act No. of
Part 5 General s. 25
25. Regulations
(1) The Governor may make regulations for the
purposes of this Act.
(2) The regulations may be made so as to apply
differently according to such factors as are
specified in the regulations.
(3) The regulations may authorise any matter to be
from time to time determined, applied or
regulated by any person or body specified in the
regulations.
26. Administration of Act
Until provision is made in relation to this Act by
order under section 4 of the Administrative
Arrangements Act 1990
(a) the administration of this Act is assigned
to the Minister for Justice and Workplace
Relations; and
(b) the department responsible to that
Minister in relation to the administration
of this Act is the Department of Justice.
Government Printer, Tasmania 37