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This is a Bill, not an Act. For current law, see the Acts databases.
Clause Page
Witness Protection (Amendment) Act 1996
Act No.
TABLE OF PROVISIONS
Clause Page
1. Purpose 1
2. Commencement 2
3. Principal Act 2
4. Definitions 2
5. New sections 3A, 3B and 3C inserted 4
3A. Victorian witness protection program 4
3B. Inclusion in the Victorian witness protection program 5
3C. Special commercial arrangements by Chief
Commissioner 6
6. Amendment of section 4 6
7. Memorandum of understanding 6
8. Amendment of sections 6, 8 and 9 8
9. New section 10 substituted 8
10. Information not to be disclosed 8
10. Amendment of sections 11, 12 and 14 10
11. Section 15 substituted and new sections inserted 11
15. Special provision in case of marriage 11
16. Cessation of protection and assistance 12
17. Notice of involuntary termination, review and appeal 13
18. When does involuntary termination take effect? 14
19. Restoration of former identity 15
20. When does a decision to restore a person's former
identity take effect? 17
21. Arrangements with approved authorities 18
22. Authorisation of approved authorities 19
23. Provision of information to approved authorities 20
24. Freedom of Information Act 1982 21
25. Supreme Court--limitation of jurisdiction 22
26. Transitional provision 22
12. Amendment of definition 22
NOTES 24
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A BILL
to amend the Witness Protection Act 1991 and for other purposes.
Witness Protection (Amendment) Act
1996
The Parliament of Victoria enacts as follows:
1. Purpose
The purpose of this Act is to amend the Witness
Protection Act 1991--
(a) to facilitate arrangements and exchange of
information with authorities in other
5
jurisdictions in relation to witness protection;
(b) to make further provision for the protection
of witnesses by the Chief Commissioner of
Police;
(c) to improve the operation of the Act;
10
(d) to remove the sunset provision.
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2. Commencement
(1) This Act (except section 12) comes into operation
on the day on which it receives the Royal Assent.
(2) Subject to sub-section (3), section 12 comes into
operation on a day to be proclaimed.
5
(3) If section 12 does not come into operation before
31 December 1997, it comes into operation on that
day.
No. 15/1991
3. Principal Act as amended
by No.
In this Act the Witness Protection Act 1991 is
10 28/1994.
called the Principal Act.
4. Definitions
(1) In section 3 of the Principal Act insert the
following definitions--
' "approved authority" means--
15
(a) the Commissioner of the Australian
Federal Police;
(b) a Commissioner (however designated)
of the police force of another State;
(c) the Chairman of the National Crime
20
Authority;
(d) an authority or body of the
Commonwealth or another State that--
(i) is authorised to conduct inquiries
or investigations in relation to
25
conduct that constitutes, or is
alleged to constitute, criminal
conduct, misconduct or
corruption; and
(ii) is declared by the Minister, by
30
notice published in the
Government Gazette, to be an
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s. 4 Act No.
approved authority for the
purposes of this Act;
"complementary witness protection law"
means a law of the Commonwealth or
another State that--
5
(a) makes provision for the protection of
witnesses; and
(b) is declared by the Minister, by notice
published in the Government Gazette,
to be a complementary witness
10
protection law;
"Deputy Ombudsman" means the Deputy
Ombudsman (Police Complaints) appointed
under section 6A of the Ombudsman Act
1973;
15
"Ombudsman" means the Ombudsman
appointed under section 3 of the
Ombudsman Act 1973;
"register of marriages" means the register of
marriages kept under section 41 of the
20
Registration of Births Deaths and
Marriages Act 1959;
"State" includes Territory;
"Victorian witness protection program" means
the program established and maintained by
25
the Chief Commissioner of Police under
section 3A;'.
(2) In section 3 of the Principal Act for the definition
of "witness" substitute--
30
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' "witness" means--
(a) a person who has given, or agreed to
give, evidence on behalf of the Crown
in--
(i) proceedings for an offence; or
5
(ii) hearings or proceedings before an
authority that is declared by the
Minister, by notice published in
the Government Gazette, to be an
authority to which this paragraph
10
applies; or
(b) a person who has given, or agreed to
give, evidence otherwise than as
mentioned in paragraph (a) in relation
to the commission or possible
15
commission of an offence against a law
of Victoria, the Commonwealth or
another State; or
(c) a person who has made a statement to
the Chief Commissioner of Police,
20
another member of the police force or
an approved authority in relation to an
offence against a law of Victoria, the
Commonwealth or another State; or
(d) a person who, for any other reason,
25
may require protection or other
assistance under this Act.'.
5. New sections 3A, 3B and 3C inserted
After section 3 of the Principal Act insert--
"3A. Victorian witness protection program
30
(1) The Chief Commissioner of Police, through
the establishment and maintenance of a
Victorian witness protection program, may
take such action as he or she thinks
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s. 5 Act No.
necessary and reasonable to protect the
safety and welfare of a witness or a member
of the family of a witness.
(2) That action may include--
(a) applying for any document necessary--
5
(i) to allow the witness or family
member to establish a new
identity; or
(ii) otherwise to protect the witness or
family member;
10
(b) relocating the witness or family
member;
(c) providing accommodation for the
witness or family member;
(d) providing transport for the property of
15
the witness or family member;
(e) doing any other things that the Chief
Commissioner of Police considers
necessary to ensure the safety of the
witness or family member.
20
(3) The Chief Commissioner of Police must not
obtain documentation for a witness or family
member that represents that the witness or
family member--
(a) has a qualification that he or she does
25
not have; or
(b) is entitled to a benefit that he or she is
not entitled to.
3B. Inclusion in the Victorian witness
protection program
30
(1) The Chief Commissioner of Police has the
sole responsibility of deciding whether to
include a witness in the Victorian witness
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protection program, including cases where
an approved authority has requested that a
witness be included in the program.
(2) A witness may be included in the Victorian
witness protection program only if--
5
(a) the Chief Commissioner has decided
that the witness be included; and
(b) the witness agrees to be included; and
(c) the Chief Commissioner enters into a
memorandum of understanding with the
10
witness in accordance with section 5.
3C. Special commercial arrangements by Chief
Commissioner
The Chief Commissioner of Police may
make commercial arrangements with a
15
person under which a witness or a member
of the family of a witness is able to obtain a
benefit under a contract or arrangement
without revealing his or her former
identity.".
20
6. Amendment of section 4
In section 4(1) of the Principal Act after "births"
insert "or register of marriages".
7. Memorandum of understanding
(1) In section 5 of the Principal Act, after sub-section
25
(1) insert--
"(1A) A memorandum of understanding must--
(a) set out the basis on which the witness is
included in the Victorian witness
protection program and details of the
30
protection and assistance that are to be
provided; and
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(b) contain a provision to the effect that
protection and assistance under the
program may be terminated if the
witness breaches a term of the
memorandum of understanding.".
5
(2) In section 5(2) of the Principal Act--
(a) paragraph (h) is repealed;
(b) for paragraph (j) substitute--
"(j) any other matter for which it may be
necessary or convenient to make
10
provision.".
(3) After section 5(2) of the Principal Act insert--
"(3) A memorandum of understanding must
contain a statement advising the witness of
his or her right to complain to the Deputy
15
Ombudsman about the conduct of the Chief
Commissioner of Police or another member
of the police force in relation to the matters
dealt with in the memorandum.
(4) A memorandum of understanding must be
20
signed--
(a) by the witness; or
(b) if the witness is under the age of 18, by
a parent or guardian of the witness; or
(c) if the witness otherwise lacks legal
25
capacity to sign, by a guardian or other
legal personal representative of the
witness.
(5) If--
(a) a parent or guardian of a witness has
30
signed a memorandum of
understanding because the witness was
under the age of 18; and
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(b) the memorandum is still operating after
the witness turns 18--
the Chief Commissioner of Police may
require the witness to sign the
memorandum.".
5
8. Amendment of sections 6, 8 and 9
(1) In the Principal Act--
(a) in section 6(1) after "births" insert "or
register of marriages";
(b) in section 8--
10
(i) in paragraphs (a) and (b) after "births"
insert "or register of marriages";
(ii) in paragraph (c) after "entry" insert "or
original marriage entry";
(c) in section 9(1) after "register of births"
15
insert "or register of marriages".
(2) For section 9(2) of the Principal Act substitute--
"(2) An entry made in the register of births or
register of marriages under this Act can only
be cancelled by the Registrar if the Supreme
20
Court, after being satisfied that the witness is
no longer included in the Victorian witness
protection program, has made a court order
on the application of the Chief
Commissioner of Police directing that the
25
entry be cancelled.".
9. New section 10 substituted
For section 10 of the Principal Act substitute--
"10. Information not to be disclosed
(1) A person must not, either directly or
30
indirectly, make a record of, disclose, or
communicate to another person any
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information relating to the making of an
entry in the register of births or the register
of marriages under this Act, unless it is
necessary to do so--
(a) for the purposes of this Act; or
5
(b) for the purposes of an investigation by
the Deputy Ombudsman; or
(c) to comply with an order of the Supreme
Court.
Penalty: Imprisonment for 10 years.
10
(2) Despite sub-section (1), the Chief
Commissioner of Police may disclose the
former identity of a witness or a member of
the family of a witness for the purpose of
obtaining documents relating to the new
15
identity of the witness or family member.
(3) Subject to sub-section (4), a person who is or
has been a witness or a member of the family
of a witness must not, either directly or
indirectly, disclose or communicate to
20
another person--
(a) the fact that he or she or a member of
his or her family has entered a
memorandum of understanding under
section 5; or
25
(b) details of the memorandum of
understanding; or
(c) information relating to anything done
by the Chief Commissioner of Police or
another member of the police force
30
under this Act; or
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(d) information about any member of the
police force gained by the person as a
result of anything done under this Act.
Penalty: Imprisonment for 5 years.
(4) Sub-section (3) does not apply to a
5
disclosure or communication--
(a) that has been authorised by the Chief
Commissioner of Police; or
(b) that is necessary for the purposes of an
investigation by the Deputy
10
Ombudsman; or
(c) that is necessary to comply with an
order of the Supreme Court.
(5) A person must not, without lawful authority,
disclose information--
15
(a) about the identity or location of a
person who is or has been--
(i) included on the Victorian witness
protection program; or
(ii) included in a witness protection
20
program conducted by the
Commonwealth or another State
under a complementary witness
protection law; or
(b) that compromises the security of such a
25
person.
Penalty: Imprisonment for 10 years.".
10. Amendment of sections 11, 12 and 14
(1) In section 11(1) and (2) of the Principal Act after
"births" insert "or register of marriages".
30
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(2) After section 12(1)(d) of the Principal Act
insert--
" ; or
(e) the Ombudsman; or
(f) the Deputy Ombudsman.".
5
(3) After section 12(3) of the Principal Act insert--
"(4) Nothing in this section prevents the Deputy
Ombudsman from investigating a complaint
in relation to the conduct of the Chief
Commissioner of Police or another member
10
of the police force in relation to this Act.".
(4) In section 14 of the Principal Act after "register of
births" insert "or register of marriages".
11. Section 15 substituted and new sections inserted
For section 15 of the Principal Act substitute--
15
"15. Special provision in case of marriage
A person who has been provided with a new
identity under the Victorian witness
protection program must not marry unless--
(a) the person has given to the Chief
20
Commissioner of Police or an approved
authority evidence that satisfies the
Chief Commissioner or approved
authority of the identity of the person
and that the person is of marriageable
25
age; and
(b) if the person has been married
previously, the person has given to the
Chief Commissioner or approved
authority evidence that satisfies the
30
Chief Commissioner or approved
authority that the person's previous
spouse has died or that the previous
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marriage has been dissolved or
annulled; and
(c) the person has given to the Chief
Commissioner or approved authority a
statutory declaration to the effect that
5
there is no legal impediment to the
marriage.
Penalty: Imprisonment for 6 months.
16. Cessation of protection and assistance
(1) Protection and assistance provided to a
10
person under the Victorian witness
protection program must be terminated by
the Chief Commissioner of Police if the
person requests in writing that it be
terminated.
15
(2) Protection and assistance provided to a
person under the Victorian witness
protection program may be terminated by the
Chief Commissioner of Police if--
(a) the person deliberately breaches a term
20
of the memorandum of understanding
or a requirement or undertaking relating
to the program; or
(b) the person's conduct or threatened
conduct is, in the opinion of the Chief
25
Commissioner, likely to threaten the
security or compromise the integrity of
the program; or
(c) the circumstances that gave rise for the
need for protection and assistance for
30
the person cease to exist--
and the Chief Commissioner is of the
opinion that, in the circumstances, the
protection and assistance should be
terminated.
35
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17. Notice of involuntary termination, review
and appeal
(1) If the Chief Commissioner of Police decides
under section 16(2) to terminate protection
and assistance to a person he or she must--
5
(a) take reasonable steps to notify the
person of the decision; and
(b) notify the relevant approved authority
(if any) of the decision.
(2) Within 28 days after receiving notification
10
under sub-section (1)(a), a person may apply
in writing to the Chief Commissioner for a
review of the decision.
(3) If an application is made under sub-section
(2), the Chief Commissioner--
15
(a) must review the decision and give the
person a reasonable opportunity to state
his or her case; and
(b) after the review, must confirm or
reverse the decision; and
20
(c) after doing so, must inform the person
in writing.
(4) If the Chief Commissioner confirms the
decision, he or she must inform the person--
(a) of the reasons for the confirmation; and
25
(b) of the person's rights under sub-section
(5).
(5) Within 3 days after being informed of the
confirmation of a decision to terminate
protection and assistance, a person may
30
appeal to the Deputy Ombudsman.
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Act No.
(6) The Deputy Ombudsman--
(a) must determine an appeal under sub-
section (5) within 72 hours after
receiving it; and
(b) in doing so, may make any decision
5
that could have been made by the Chief
Commissioner.
18. When does involuntary termination take
effect?
(1) A decision of the Chief Commissioner of
10
Police under section 16(2) to terminate
protection and assistance to a person--
(a) if the person's location is not known
and the Chief Commissioner has taken
reasonable steps to notify them of the
15
decision but has been unable to do so--
takes effect at the end of the period of
28 days after those steps were
commenced; or
(b) if the person does not apply for a
20
review of the decision in accordance
with section 17(2)--takes effect at the
end of the period of 28 days after the
person receives the notification; or
(c) if the person applies for a review of the
25
decision in accordance with section
17(2) and the Chief Commissioner
notifies them that the decision has been
reversed--has no effect; or
(d) if the person applies for a review of the
30
decision in accordance with section
17(2), the Chief Commissioner notifies
them that the decision has been
confirmed and they do not appeal to the
Deputy Ombudsman under section
35
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17(5)--takes effect on the expiration of
3 days after the Chief Commissioner
notifies the person of the confirmation
of the decision; or
(e) if the person appeals to the Deputy
5
Ombudsman--has no effect.
(2) A decision of the Deputy Ombudsman under
section 17(6) that protection and assistance
to a person be terminated takes effect when
the Deputy Ombudsman notifies the person
10
of the decision.
19. Restoration of former identity
(1) If--
(a) a person has been provided with a new
identity under the Victorian witness
15
protection program; and
(b) protection and assistance to the person
under the program are terminated--
the Chief Commissioner of Police, if he or
she considers it appropriate to do so, may
20
take such action as is necessary to restore the
person's former identity.
(2) The Chief Commissioner must take
reasonable steps to notify the person of a
decision under sub-section (1).
25
(3) If the Chief Commissioner proposes to take
action to restore a person's identity, the
person may apply in writing to the Chief
Commissioner for a review of the decision.
(4) If an application is made under sub-section
30
(3), the Chief Commissioner--
(a) must review the decision and give the
person a reasonable opportunity to state
his or her case; and
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(b) after the review, must confirm or
reverse the decision; and
(c) after doing so, must inform the person
in writing.
(5) If the Chief Commissioner confirms the
5
decision, he or she must inform the person--
(a) of the reasons for the confirmation; and
(b) of the person's rights under sub-section
(6).
(6) Within 3 days after being informed of the
10
confirmation of a decision to take action to
restore a person's former identity, the person
may appeal to the Deputy Ombudsman.
(7) The Deputy Ombudsman--
(a) must determine an appeal under sub-
15
section (6) within 72 hours after
receiving it; and
(b) in doing so, may make any decision
that could have been made by the Chief
Commissioner.
20
(8) If the Chief Commissioner--
(a) takes action under this section to
restore a person's former identity; and
(b) notifies the person in writing that they
are required to return to the Chief
25
Commissioner all documents provided
to them that relate to the new identity
16
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s. 11 Act No.
provided under the Victorian witness
protection program--
the person must not, without reasonable
excuse, refuse or fail to return those
documents to the Chief Commissioner within
5
14 days after receiving the notice.
Penalty: 10 penalty units.
20. When does a decision to restore a person's
former identity take effect?
(1) A decision of the Chief Commissioner of
10
Police under section 19 to take action to
restore a person's former identity--
(a) if the person's location is not known
and the Chief Commissioner has taken
reasonable steps to notify them of the
15
decision but has been unable to do so--
takes effect at the end of the period of
28 days after those steps were
commenced; or
(b) if the person does not apply for a
20
review of the decision in accordance
with section 19(3)--takes effect at the
end of the period of 28 days after the
person receives the notification; or
(c) if the person applies for a review of the
25
decision in accordance with section
19(3) and the Chief Commissioner
notifies them that the decision has been
reversed--has no effect; or
(d) if the person applies for a review of the
30
decision in accordance with section
19(3), the Chief Commissioner notifies
them that the decision has been
confirmed and they do not appeal to the
Deputy Ombudsman under section
35
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19(6)--takes effect on the expiration of
3 days after the Chief Commissioner
notifies the person of the confirmation
of the decision; or
(e) if the person appeals to the Deputy
5
Ombudsman--has no effect.
(2) A decision of the Deputy Ombudsman under
section 19(7) that action be taken to restore a
person's former identity takes effect when
the Deputy Ombudsman notifies the person
10
of the decision.
21. Arrangements with approved authorities
(1) The Chief Commissioner of Police may
make arrangements with an approved
authority about any matter in connection
15
with the administration of a complementary
witness protection law.
(2) Without limiting the coverage of those
arrangements, they--
(a) may provide for the Chief
20
Commissioner of Police or a member of
the police force to perform functions or
exercise powers conferred by a
complementary protection law;
(b) must include procedures under which
25
the authority shares with the State the
costs incurred under those
arrangements;
(c) may provide for the authority to make
available to the Chief Commissioner of
30
Police such statements, transcripts of
evidence and other documents as will
assist the Chief Commissioner in
deciding--
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(i) whether to provide protection or
assistance to a person under this
Act;
(ii) what protection and assistance is
appropriate for a person;
5
(d) may confer powers and functions under
complementary witness protection laws
on the Chief Commissioner of Police.
22. Authorisation of approved authorities
(1) The Minister, by notice published in the
10
Government Gazette, may authorise an
approved authority to perform functions or
exercise powers conferred on the Chief
Commissioner of Police under this Act for
the purposes of any arrangement entered into
15
by the Chief Commissioner under section 21
or the corresponding provision of a
complementary witness protection law.
(2) If a notice has been published under sub-
section (1) in relation to an approved
20
authority within the meaning of paragraph
(a), (b) or (c) of the definition of "approved
authority" in section 3--
(a) for the purposes of an arrangement
referred to in sub-section (1), a person
25
who is a member of the body of which
the approved authority is Commissioner
(however designated) or Chairman may
perform any function or exercise any
power conferred on a member of the
30
police force under this Act; and
(b) the provisions of this Act apply to the
person as if he or she were a member of
the police force.
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(3) If a notice has been published under sub-
section (1) in relation to an approved
authority within the meaning of paragraph
(d) of the definition of "approved authority"
in section 3--
5
(a) for the purposes of an arrangement
referred to in sub-section (1), a person
who is a member or an officer of the
approved authority may perform any
function or exercise any power
10
conferred on a member of the police
force under this Act; and
(b) the provisions of this Act apply to the
person as if he or she were a member of
the police force.
15
23. Provision of information to approved
authorities
If--
(a) a person has been provided with a new
identity or relocated under this Act; and
20
(b) an approved authority notifies the Chief
Commissioner of Police that the person
is under investigation for, or has been
arrested for or is charged with, an
offence against a law of the
25
Commonwealth or another State the
maximum penalty for which is or
includes imprisonment for a period of
more than 1 year--
the Chief Commissioner of Police may do
30
any or all of the things in sub-section (2).
(2) If sub-section (1) applies, the Chief
Commissioner of Police may--
(a) release to the approved authority the
person's new identity or location;
35
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(b) provide the approved authority with the
person's criminal record and
fingerprints;
(c) release to the approved authority such
other information relating to the person
5
as the Chief Commissioner considers
appropriate in the circumstances;
(d) if the Chief Commissioner considers it
appropriate in the circumstances, allow
officers of the approved authority to
10
interview members of the police force
in relation to the person.
24. Freedom of Information Act 1982
Despite anything to the contrary in the
Freedom of Information Act 1982, that Act
15
does not apply to--
(a) a document, whether created before, on
or after the commencement of this
section, to the extent that the document
discloses information about--
20
(i) the identity or location of a person
who is, or has been, included on
the Victorian witness protection
program or a witness protection
program conducted by the
25
Commonwealth or another State
under a complementary witness
protection law; or
(ii) the fact that a person has entered
into a memorandum of
30
understanding under section 5 or
the details of a memorandum of
understanding; or
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Witness Protection (Amendment) Act 1996
s. 12
Act No.
(iii) the making of an entry on the
register of births or the register of
marriages under this Act; or
(iv) anything done by the Chief
Commissioner of Police or
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another member of the police
force under this Act or a
complementary witness protection
law; or
(d) a document to the extent that the
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document discloses any information
received by the Chief Commissioner of
Police from an approved authority
under this Act or a complementary
witness protection law.
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25. Supreme Court--limitation of jurisdiction
It is the intention of section 12(3) to alter or
vary section 85 of the Constitution Act
1975.
26. Transitional provision
20
A person who has entered a memorandum of
understanding with the Chief Commissioner
of Police that is in force immediately before
the commencement of section 11 of the
Witness Protection (Amendment) Act
25
1996 is taken to be a witness included on the
Victorian witness protection program and the
memorandum of understanding continues to
have effect after that commencement
according to its tenor.".
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12. Amendment of definition
In section 3 of the Principal Act, in the definition
of "register of marriages" for "kept under section
41 of the Registration of Births Deaths and
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531100B.I1-30/10/96 BILL LA INTRODUCTION 30/10/96
Witness Protection (Amendment) Act 1996
s. 12 Act No.
Marriages Act 1959" substitute "in the Register
maintained under Part 7 of the Births, Deaths
and Marriages Registration Act 1996".
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531100B.I1-30/10/96 BILL LA INTRODUCTION 30/10/96
Witness Protection (Amendment) Act 1996
Notes
Act No.
NOTES
By Authority. Government Printer for the State of Victoria.
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531100B.I1-30/10/96 BILL LA INTRODUCTION 30/10/96
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