EVIDENCE (WITNESS IDENTITY PROTECTION) ACT 2004 (NO 60 OF 2004) - SECT 3 New Part IIAA inserted in Evidence Act 1958

EVIDENCE (WITNESS IDENTITY PROTECTION) ACT 2004 (NO 60 OF 2004) - SECT 3

After Part II of the Evidence Act 1958 insert —

'PART IIAA—WITNESS IDENTITY PROTECTION

Division 1—Introductory

        42BA.     Definitions

    (1)     In this Part—

"assumed name" —

        (a)     of a local operative, has the meaning given in section 42BD(1)(a)(i);

        (b)     of an interstate operative, means the name (if any) stated in the operative's interstate witness identity protection certificate as his or her assumed name;

"Australian Crime Commission" means Australian Crime Commission established by the Australian Crime Commission Act 2002 of the Commonwealth;

"chief officer" means—

        (a)     in relation to Victoria Police—the Chief Commissioner of Police;

        (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 is declared by the regulations to correspond to this Part;

"court" includes any tribunal or person authorised by law or consent of parties to receive evidence;

"court name" for a local operative in relation to an interstate proceeding or for an interstate operative in relation to a proceeding in this jurisdiction, 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;

"false representation" does not include a representation made under an authority under—

        (a)     the Crimes (Assumed Identities) Act 2004 ; or

        (b)     the Crimes (Controlled Operations) Act 2004 ;

"interstate court" means a court of another jurisdiction;

"interstate operative" means a person in respect of whom an interstate witness identity protection certificate is in force;

"interstate proceeding" means a proceeding in another jurisdiction;

"interstate witness identity protection certificate" means a certificate given under a provision of a corresponding law that corresponds to section 42BB;

"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 the following agencies—

        (a)     Victoria Police;

        (b)     the Australian Crime Commission;

"law enforcement officer" means—

        (a)     in relation to Victoria Police—a member of Victoria Police;

        (b)     in relation to the Australian Crime Commission—a member of staff of the Australian Crime Commission—

and includes a person who is seconded to a law enforcement agency, including (but not limited to) a member of the police force or police service or a police officer (however described) of another jurisdiction;

"local operative" means a person who is or was—

        (a)     authorised to acquire and use an assumed identity under the Crimes (Assumed Identities) Act 2004 ; or

        (b)     a participant in an authorised operation under the Crimes (Controlled Operations) Act 2004 ;

"member" of Victoria Police, means a member of the force within the meaning of the Police Regulation Act 1958 ;

"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;

"presiding officer" in relation to a proceeding, means the person constituting the court, or presiding over the court, 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;

"professional misconduct" means misconduct or a breach of discipline under—

        (a)     the Police Regulation Act 1958 ; or

        (b)     a law of another jurisdiction that corresponds to the Police Regulation Act 1958 ; or

        (c)     a law of the Commonwealth that governs the conduct of members of staff of the Australian Crime Commission; or

        (d)     a law of a foreign country that corresponds to the Police Regulation Act 1958 ;

"this jurisdiction" means Victoria;

"Victoria Police" means the force within the meaning of the Police Regulation Act 1958 ;

"witness identity protection certificate" means a certificate given under section 42BB.

    (2)     For the purposes of this Part—

        (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;

              (iii)     the person is discharged by a court following a committal hearing;

              (iv)     the person is acquitted or found guilty of the offence by a court;

              (v)     a nolle prosequi is entered in respect of the offence;

        (b)     a charge against a person for an offence is "pending" if the person has not yet been charged with the offence, but—

              (i)     the person has been arrested for the offence, unless the person has been later released without being charged with an offence; or

              (ii)     a summons to appear before a court to answer a charge for the offence has been served on the person;

        (c)     an allegation of professional misconduct against a person is "outstanding" if the allegation has not been finally dealt with in accordance with the law of the jurisdiction or foreign country that governs the procedure for dealing with the allegation.

    (3)     For the purposes of this Part—

        (a)     anything permitted to be done by a party to a proceeding may be done by the party's lawyer;

        (b)     any requirement to give something to a party to a proceeding is satisfied by giving the thing to the party's lawyer.

Division 2—Witness Identity Protection Certificates for Local Operatives

        42BB.     Giving witness identity protection certificate

    (1)     The chief officer of a law enforcement agency may give a certificate for a local operative of the agency in relation to an interstate proceeding if—

        (a)     the local operative is, or may be required, to give evidence in the interstate proceeding; and

        (b)     the chief officer is satisfied on reasonable grounds that the disclosure in the interstate proceeding of the local operative's identity or where the local operative lives is likely to—

              (i)     endanger the safety of the local operative or someone else; or

              (ii)     prejudice any investigation.

    (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 42BD.

    (3)     The chief officer cannot give a certificate for a local operative until the chief officer has obtained a statutory declaration from the local operative under section 42BC.

    Note:     The chief officer may delegate functions under this section—see section 42BJ.

        42BC.     Statutory declaration by local operative

    (1)     Before a witness identity protection certificate is given for a local operative, the local operative must make a statutory declaration of the following matters—

        (a)     whether the local operative has been convicted or found guilty of an offence (in Victoria or elsewhere) and, if so, particulars of each offence; and

        (b)     whether any charges against the local operative for an offence are pending or outstanding (in Victoria or elsewhere) and, if so, particulars of each charge; and

        (c)     if the local operative is or was a law enforcement officer—

              (i)     whether the local operative has been found guilty of professional misconduct and, if so, particulars of each finding; and

              (ii)     whether, to the local operative's knowledge, any allegations of professional misconduct against him or her are outstanding and, if so, particulars of each allegation; and

        (d)     whether, to the local operative's knowledge, a court (in Victoria or elsewhere) has made any adverse comment about his or her credibility and, if so, particulars of the comment; and

        (e)     whether the local operative has made a false representation when the truth was required and, if so, particulars of the representation; and

        (f)     particulars of anything else known to the local operative that may be relevant to his or her credibility.

    (2)     Subject to sub-section (3), a person cannot be compelled to disclose or produce a statutory declaration made under this section in any proceeding.

    (3)     Sub-section (2) does not apply to—

        (a)     proceedings for perjury or otherwise in respect of the falsity of the statutory declaration; or

        (b)     proceedings of a disciplinary nature against a law enforcement officer; or

        (c)     investigations or inquiries by a person or body in any jurisdiction having jurisdiction to investigate or inquire into the conduct of a law enforcement officer.

        42BD.     Form of witness identity protection certificate

    (1)     A witness identity protection certificate for a local operative of a law enforcement agency in relation to an interstate proceeding must state the following—

        (a)     if the local operative—

              (i)     is known to a party to the interstate proceeding or a party's lawyer by a name other than the operative's real name—that name (the "assumed name" ); or

              (ii)     is not known to any party to the interstate proceeding or any party's lawyer by a name—the operative's court name for the interstate proceeding; and

        (b)     the period the local operative was involved in the investigation to which the interstate proceeding relates; and

        (c)     the name of the agency; and

        (d)     the date of the certificate; and

        (e)     the grounds for giving the certificate; and

        (f)     whether the local operative has been convicted or found guilty of an offence (in Victoria or elsewhere) and, if so, particulars of each offence; and

        (g)     whether any charges against the local operative for an offence are pending or outstanding (in Victoria or elsewhere) and, if so, particulars of each charge; and

        (h)     if the local operative is or was a law enforcement officer—

              (i)     whether the local 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 local operative are outstanding and, if so, particulars of each allegation; and

              (i)     whether, to the knowledge of the person giving the certificate, a court (in Victoria or elsewhere) has made any adverse comment about the local operative's credibility and, if so, particulars of the comment; and

        (j)     whether, to the knowledge of the person giving the certificate, the local operative has made a false representation when the truth was required and, if so, particulars of the representation; and

        (k)     if there is anything else known to the person giving the certificate that may be relevant to the local operative's credibility—particulars of the thing.

    (2)     A witness identity protection certificate for a local operative must not contain information that may allow the operative's identity, or where the operative lives, to be revealed.

        42BE.     Protection of decision to give certificate

    (1)     A decision to give a witness identity protection certificate—

        (a)     is final; and

        (b)     cannot be appealed against, reviewed, called into question, quashed or invalidated in any court.

    (2)     Sub-section (1) 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.

        42BF.     Cancellation of witness identity protection certificate

    (1)     This section applies if the chief officer of a law enforcement agency gives a witness identity protection certificate for a local operative of the agency in relation to an interstate 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 local operative's identity or where the local operative lives.

    (3)     If the chief officer cancels the certificate after it has been filed in an interstate court, the chief officer must immediately give notice to the interstate court and each party to the interstate proceeding, in writing, that the certificate has been cancelled.

    Note:     The chief officer may delegate functions under this section—see section 42BJ.

        42BG.     Permission to give information disclosing operative's identity etc.

    (1)     This section applies if the chief officer of a law enforcement agency gives a witness identity protection certificate for a local operative of the agency in relation to an interstate 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 local operative's identity or where the local 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.

    Note:     The chief officer may delegate functions under this section—see section 42BJ.

        42BH.     Disclosure offences

    (1)     A person commits an offence if—

        (a)     a witness identity protection certificate for a local operative has been given; and

        (b)     the person knows that, or is reckless as to whether, the certificate has been given; and

        (c)     the person intentionally, knowingly or recklessly does something (the "disclosure action" ) that discloses, or is likely to lead to the disclosure of, the local operative's identity or where the local operative lives; and

        (d)     the person knows that, or is reckless as to whether, the certificate had not been cancelled under section 42BF 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 under a corresponding law; or

              (ii)     permitted under section 42BG.

Penalty:     Imprisonment for 2 years.

    (2)     A person is guilty of an offence against this sub-section if the person commits an offence against sub-section (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

              (ii)     prejudices or will prejudice the effective conduct of an investigation.

Penalty:     Imprisonment for 10 years.

    (3)     An offence against sub-section (2) is an indictable offence.

    (4)     For the purposes of the Freedom of Information Act 1982 , information referred to in sub-section (1) is information of a kind to which section 38 of that Act applies.

        42BI.     Reports about witness identity protection certificates

    (1)     A s soon as practicable after the end of each financial year, the chief officer of a law enforcement agency must submit to the Minister 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; and

        (b)     on what basis the chief officer was satisfied about the matters mentioned in section 42BB(1)(b) for each certificate; and

        (c)     if leave was given or an order made under a provision of a corresponding law that corresponds to section 42BP in an interstate proceeding in which a witness identity protection certificate for a local operative of the agency was filed—details of the interstate proceeding that relate to the leave or order; and

        (d)     if a witness identity protection certificate was cancelled under section 42BF—the reasons why the certificate was cancelled; and

        (e)     if a permission was given under section 42BG—the reasons why the permission was given; and

        (f)     any other information relating to witness identity protection certificates and the administration of this Part that the Minister considers appropriate.

    (3)     The report must not include information that discloses, or may lead to the disclosure of, a local operative's identity, or where the local operative lives, unless the witness identity protection certificate for the local operative has been cancelled.

    (4)     The Minister must cause a copy of the report to be laid before each House of Parliament within 15 sitting days after the day on which the Minister receives the report.

        42BJ.     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 Part may not be delegated to any other person.

    (2)     A chief officer may delegate any of the chief officer's functions under this Part (except this power of delegation) to a senior officer of the law enforcement agency.

    (3)     For the avoidance of doubt, this section prevails over section 6A of the Police Regulation Act 1958 .

    (4)     In this section—

"senior officer" means—

        (a)     in relation to Victoria Police—a Deputy Commissioner;

        (b)     in relation to the Australian Crime Commission—

              (i)     the Director National Operations; or

              (ii)     the General Manager National Operations; or

              (iii)     a member of staff of the Australian Crime Commission who is an SES employee or acting SES employee (within the meaning of the Australian Crime Commission Act 2002 of the Commonwealth) and who holds a position that is prescribed by the regulations for the purposes of this definition.

Division 3 — Interstate Witness Identity Protection Certificates

        42BK.     Application of Division

    (1)     This Division applies to a proceeding in this jurisdiction in which an interstate operative is, or may be, required to give evidence obtained as an interstate operative.

    (2)     To remove any doubt, this Division does not affect the operation of the common law in relation to the protection of the identity of a person who is not an interstate operative who gives or intends to give evidence in a proceeding in this jurisdiction.

        42BL.     Filing and notification

    (1)     An interstate witness identity protection certificate for an interstate operative in relation to a proceeding in this jurisdiction must be filed in the court before the interstate 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 the shorter period agreed to by the party) before the day the interstate 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.

        42BM.     Effect of interstate witness identity protection certificate

    (1)     This section applies if—

        (a)     an interstate witness identity protection certificate for an interstate operative is filed in accordance with section 42BL(1); and

        (b)     either—

              (i)     a copy of the certificate is given to each party in accordance with section 42BL(2) and to each person in accordance with an order under section 42BL(3) (if any); or

              (ii)     the court gives leave for this section to apply despite non-compliance with section 42BL(2) or (3).

    (2)     If this section applies—

        (a)     the interstate operative may give evidence in the proceeding under the assumed name, or court name, stated in the certificate; and

        (b)     subject to sections 42BO and 42BP—

              (i)     a question must not be asked of a witness, including the interstate operative, that may lead to the disclosure of the interstate operative's identity or where the interstate operative lives; and

              (ii)     a witness, including the interstate 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 interstate operative's identity or where the interstate 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 interstate operative's identity or where the interstate operative lives.

    (3)     For the purposes of this section, a person involved in a proceeding includes—

        (a)     the court;

        (b)     a party to the proceeding;

        (c)     a person given leave to be heard or make submissions in the proceeding;

        (d)     a lawyer representing a person referred to in paragraph (b) or (c) or a lawyer assisting the court in the proceeding;

        (e)     any other officer of the court or person assisting the court in the proceeding;

        (f)     a person acting in the execution of any process or the enforcement of any order in the proceeding.

        42BN.     Orders to protect interstate operative's identity etc.

    (1)     The court in which an interstate witness identity protection certificate is filed may make any order it considers necessary or desirable to protect the identity of the interstate 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 sub-section (1); and

        (b)     the person intentionally, knowingly or recklessly contravenes the order.

Penalty:     Imprisonment for 2 years.

    (3)     Sub-section (2) does not limit the court's power to punish for contempt.

        42BO.     Disclosure of interstate operative's identity to presiding officer

    (1)     This section applies if an interstate witness protection certificate for an interstate operative in relation to a proceeding is filed in a court.

    (2)     The presiding officer in the proceeding may require the interstate operative—

        (a)     to disclose his or her true identity to the presiding officer; and

        (b)     to provide the presiding officer with photographic evidence of that identity.

        42BP.     Application for disclosure of interstate operative's identity etc.

    (1)     This section applies if an interstate witness protection certificate for an interstate 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 interstate operative, that may lead to the disclosure of the interstate operative's identity or where the interstate 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 interstate operative's identity or where the interstate operative lives; or

        (b)     for an order requiring a witness, including the interstate operative, to answer a question, give evidence or provide information that discloses, or may lead to the disclosure of, the interstate operative's identity or where the interstate operative lives.

    (3)     The court may—

        (a)     give leave for the party or lawyer to do anything mentioned in sub-section (2)(a);

        (b)     make an order requiring a witness to do anything mentioned in sub-section (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 interstate operative's credibility; and

        (b)     it would be impractical to test properly the credibility of the interstate operative without allowing the risk of disclosure of, or disclosing, the interstate operative's identity or where the interstate operative lives; and

        (c)     it is in the interests of justice for the interstate 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 in response to the application—the question is asked (and answered), the evidence is given, the information is provided or the statement is made.

        42BQ.     Suppression and protection orders

    (1)     If an application is made under section 42BP(2), 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 in response to the application—the question is asked (and answered), the evidence is given, the information is provided or the statement is made.

    (2)     Nothing in sub-section (1) 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.

    (3)     The court may make any other order it considers appropriate to protect the interstate operative's identity or to prevent the disclosure of where the interstate operative lives.

    (4)     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 sub-section (1), (2) or (3); and

        (b)     the person intentionally, knowingly or recklessly contravenes the order.

Penalty:     Imprisonment for 2 years.

    (5)     Sub-section (4) does not limit the court's power to punish for contempt.

        42BR.     Directions to jury

    (1)     This section applies if—

        (a)     an interstate witness identity protection certificate for an interstate operative in relation to a proceeding is filed in a court; and

        (b)     there is a jury in the proceeding; and

        (c)     the interstate operative gives evidence.

    (2)     The court must (unless it considers it inappropriate) direct the jury not to give the interstate operative's evidence any more or less weight, or draw any adverse inferences against the defendant or another party to the proceeding, because—

        (a)     there is an interstate witness identity protection certificate for the interstate operative; or

        (b)     the court has made an order under section 42BN or section 42BQ.

        42BS.     Disclosure offences

    (1)     A person commits an offence if—

        (a)     an interstate witness identity protection certificate for an interstate operative has been given; and

        (b)     the person knows that, or is reckless as to whether, the certificate has been given; and

        (c)     the person intentionally, knowingly or recklessly does something (the "disclosure action" ) that discloses, or is likely to lead to the disclosure of, the interstate operative's identity or where the interstate operative lives; and

        (d)     the person knows that, or is reckless as to whether, the certificate had not been cancelled under a corresponding law 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 42BP; or

              (ii)     authorised or permitted under a corresponding law.

Penalty:     Imprisonment for 2 years.

    (2)     A person is guilty of an offence against this sub-section if the person commits an offence against sub-section (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

              (ii)     prejudices or will prejudice the effective conduct of an investigation.

Penalty:     Imprisonment for 10 years.

    (3)     An offence against sub-section (2) is an indictable offence.

    (4)     Nothing in this section prevents a person from complying with a requirement under section 42BO.

    (5)     For the purposes of the Freedom of Information Act 1982 , information referred to in sub-section (1) is information of a kind to which section 38 of that Act applies.'.