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Witness Protection Amendment Act 2016 No. 34 of 2016

TABLE OF PROVISIONSSection Page

Part 1—Preliminary 1

1 Purposes 12 Commencement 23 Principal Act 2

Part 2—Amendment of Witness Protection Act 1991 3

4 Definitions 35 New sections 3AAA and 3AA inserted 46 Inclusion in the Victorian witness protection program 67 Memorandum of understanding 78 Effect of entries made under this Act 79 Interim protection 710 Cessation of interim protection declaration 711 Application for authority to acquire and use assumed identity 812 New Division 3A of Part 2 inserted 813 Information not to be disclosed 1214 Disclosure of information about identity etc. in proceedings 1315 Immunity from proceedings 1316 New sections 12A and 12B inserted 1417 New section 15AA inserted 1618 Suspension of protection and assistance 1619 Termination of protection and assistance 1720 New Part 2A inserted 1821 Delegation by Chief Commissioner 3022 Freedom of Information Act 1982 3023 Repeal of section 25 3124 Regulations 3125 New section 29 inserted 32

Part 3—Consequential amendments 33

Division 1—Crimes (Assumed Identities) Act 2004 33

26 Purposes 3327 Definitions 3328 Application for authority to acquire or use assumed identity 3329 Determination of applications 3330 Disclosing information about assumed identity 33

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Division 2—Independent Broad-based Anti-corruption Commission Act 2011 34

31 Matters to be included in annual report 34

Division 3—Public Interest Monitor Act 2011 35

32 Annual report 35

Division 4—Victoria Police Act 2013 36

33 Definitions 3634 Ministerial directions 36

Division 5—Victorian Inspectorate Act 2011 36

35 Definitions 3636 Functions of the Victorian Inspectorate 3737 Specific powers in relation to the Public Interest Monitors 3738 Special reports 3839 Matters to be included in annual report 39

Part 4—Amendment of Crimes Act 1958—intimidation and reprisals relating to witnesses 40

40 New Division 5A of Part I inserted 40

Part 5—Repeal 44

41 Repeal of amending Act 44═══════════════

Endnotes 45

1 General information 45

Witness Protection Amendment Act 2016†

No. 34 of 2016

[Assented to 15 June 2016]

The Parliament of Victoria enacts:

Part 1—Preliminary1 Purposes

The main purposes of this Act are—

(a) to amend the Witness Protection Act 1991 to improve the governance and administration of protection and assistance provided under that Act and promote community confidence in its operation by—

Victoria

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(i) extending its scope to include witnesses facing a high level of risk whose arrangements for protection and assistance currently fall outside that Act; and

(ii) establishing principles to which specified persons must have regard when making decisions or taking action under that Act; and

(iii) establishing a framework for independent monitoring of the operation of that Act and limited public reporting of activity under that Act, subject to appropriate safeguards; and

(iv) revising the immunities under that Act; and

(v) providing for regular review of all protection and assistance provided under that Act; and

(b) to amend the Crimes Act 1958 to create a new offence relating to intimidation towards, and reprisals against, witnesses.

2 Commencement

(1) Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.

(2) If a provision of this Act does not come into operation before 1 July 2017, it comes into operation on that day.

3 Principal Act

In this Act, the Witness Protection Act 1991 is called the Principal Act.

Section Page

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Part 2—Amendment of Witness Protection Act 1991

4 Definitions

In section 3(1) of the Principal Act insert the following definitions—

"alternative protection arrangements means protection and assistance provided by the Chief Commissioner under Division 3A of Part 2 under arrangements falling outside the Victorian witness protection program;

Deputy Public Interest Monitor means a Deputy Public Interest Monitor appointed under section 7 of the Public Interest Monitor Act 2011;

IBAC Commissioner means the Commissioner within the meaning of the Independent Broad-based Anti-corruption Commission Act 2011;

member of Victoria Police personnel has the same meaning as in the Victoria Police Act 2013;

Principal Public Interest Monitor means the Principal Public Interest Monitor appointed under section 6 of the Public Interest Monitor Act 2011;

Public Interest Monitor means—

(a) the Principal Public Interest Monitor; or

(b) a Deputy Public Interest Monitor;

sworn IBAC Officer has the same meaning as in the Independent Broad-based Anti-corruption Commission Act 2011;".

Part 5—Repeal

Witness Protection Amendment Act 2016No. 34 of 2016

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5 New sections 3AAA and 3AA inserted

After section 3 of the Principal Act insert—

"3AAA Objective of witness protection

The central objective of witness protection is to give practical effect to the rule of law and advance the public interest in the efficacy and integrity of the criminal justice system by, as far as reasonably possible, protecting those exposed to a risk of injury or death by reason of their participation in, or cooperation with, the criminal justice system.

3AA Witness protection principles

(1) Subject to subsection (3), the following persons must have regard to the principles set out in subsection (2) when making any decision or taking any action under this Act—

(a) the Chief Commissioner;

(b) a person to whom a duty, function or power of the Chief Commissioner under this Act has been delegated;

(c) a police officer;

(d) an approved authority or an officer of an approved authority.

Note

The principles set out in this section are to be read in conjunction with the central objective stated in section 3AAA.

(2) For the purposes of subsection (1), the following principles apply—

(a) witness protection and assistance is intended to remove or reduce barriers to

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cooperation in criminal investigations and prosecutions and should not be provided as a reward or inducement;

(b) as far as practicable, there should be a clear separation of the investigative and the protective functions of Victoria Police;

(c) the decision to protect a witness should be determined primarily by reference to the risk incurred by the person as a consequence of the person's participation in, or cooperation with, the criminal justice system;

(d) protection and assistance provided to a witness under this Act should be tailored to the individual circumstances and risk faced by the witness and the community;

(e) the safety of the witness should take priority over the successful conduct of a prosecution;

(f) the interests of children involved in, or affected by, the provision of witness protection and assistance should be separately considered and their welfare should be a powerful factor in decision making;

(g) there should be public accountability for the operation of the witness protection and assistance provided under this Act, subject to the need to safeguard—

(i) the health and safety of any person; and

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(ii) the effective conduct of any investigation or intelligence-gathering in relation to criminal activity; and

(iii) the overall integrity of the Victorian witness protection program and the provision of alternative protection arrangements under this Act.

(3) The principles set out in subsection (2) do not apply to the exercise of a statutory duty under this Act where there is no discretion involved in the performance of that duty.

(4) The Parliament does not intend by this section to create in any person any legal right or give rise to any civil cause of action.".

6 Inclusion in the Victorian witness protection program

(1) At the foot of section 3B(3) of the Principal Act insert—"Note

Under section 20M, in deciding whether to include a witness in the Victorian witness protection program, the Chief Commissioner also must take into consideration any recommendation or report of the Public Interest Monitor relating to the decision.".

(2) After section 3B(4) of the Principal Act insert—

"(5) If a witness has been considered for inclusion in the Victorian witness protection program but has not been included in that program, the Chief Commissioner must consider whether to provide alternative protection arrangements to the witness under section 9P.".

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7 Memorandum of understanding

Insert the following heading to section 5 of the Principal Act—

"Memorandum of understanding—Victorian witness protection program".

8 Effect of entries made under this Act

In section 9(2)(a) of the Principal Act omit "of Police".

9 Interim protection

In section 9C(1)(a) of the Principal Act, after "Victorian witness protection program" insert "or to provide alternative protection arrangements to the witness".

10 Cessation of interim protection declaration

(1) In section 9E(1) of the Principal Act—

(a) in paragraph (a), after "section 5" insert "or 9R";

(b) in paragraph (b), for "include the witness in the Victorian witness protection program." substitute "provide alternative protection arrangements to the witness; or";

(c) after paragraph (b) insert—

"(c) receives a request in writing from the witness that the interim protection cease.".

(2) For section 9E(2) of the Principal Act substitute—

"(2) The Chief Commissioner must notify a witness to whom an interim protection declaration relates of—

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(a) the Chief Commissioner's decision not to include the witness in the Victorian witness protection program; or

(b) the Chief Commissioner's decision not to provide alternative protection arrangements to the witness.".

11 Application for authority to acquire and use assumed identity

For section 9G(1) of the Principal Act substitute—

"(1) A police officer may apply to the Chief Commissioner for an authority for a person to acquire and use an assumed identity if the person is—

(a) a person to whom an interim protection declaration relates; or

(b) a participant; or

(c) a person to whom alternative protection arrangements are being provided.".

12 New Division 3A of Part 2 inserted

After section 9N of the Principal Act insert—

"Division 3A—Alternative protection arrangements

9O Alternative protection arrangements

(1) The Chief Commissioner may provide protection and assistance outside of the Victorian witness protection program (alternative protection arrangements) to protect the safety and welfare of a witness, or a member of the family of a witness—

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(a) who has been considered under section 3B for inclusion in the Victorian witness protection program but has not been included; and

(b) whom the Chief Commissioner considers is at a high level of risk because of the witness's participation in, or cooperation with, the criminal justice system.

(2) Action that may be taken under alternative protection arrangements may include any action that may be taken under section 3A(2).

(3) Alternative protection arrangements must not include the application for a court order under this Act authorizing the making of a new entry in the register of births or register of marriages in respect of the witness or a member of the family of the witness.

9P Provision of alternative protection arrangements

(1) The Chief Commissioner may decide to provide alternative protection arrangements to a witness if—

(a) the witness agrees to the alternative protection arrangements; and

(b) the Chief Commissioner enters into a memorandum of understanding with the witness in accordance with section 9R.

(2) In deciding whether to provide alternative protection arrangements to a witness, the Chief Commissioner—

(a) must have regard to the matters referred to in section 3B(3)(a) to (g); and

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(b) may have regard to any other matters that the Commissioner considers relevant.

Note

Under section 20M, in deciding whether to provide alternative protection arrangements to a witness, the Chief Commissioner also must take into consideration any recommendation or report of the Public Interest Monitor relating to the decision.

(3) If a witness has been offered alternative protection arrangements but has refused to sign a memorandum of understanding under section 9R to give effect to those arrangements, the Chief Commissioner must document the offer, the refusal of the offer and the terms of the memorandum of understanding.

9Q Witness to disclose certain matters

(1) A witness who wishes to be provided with alternative protection arrangements must give to the Chief Commissioner—

(a) any information required by the Chief Commissioner to decide whether alternative protection arrangements should be provided to the witness; andExample

Any information referred to in section 4(2) that has not already been provided to the Chief Commissioner.

(b) copies of any documents in the possession or control of the witness relating to that information.

(2) For the purposes of assessing whether alternative protection arrangements should be provided to a witness, the Chief Commissioner may—

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(a) require the witness to undergo medical tests or examinations or psychological or psychiatric examinations and to make the results available to the Chief Commissioner; or

(b) make any other inquiries and investigations that the Chief Commissioner considers necessary.

9R Memorandum of understanding—alternative protection arrangements

(1) For the purposes of section 9P(1)(b), a memorandum of understanding between the Chief Commissioner and a witness must—

(a) set out the basis on which the alternative protection arrangements are to be provided to the witness and the details of the protection and assistance that are to be provided; and

(b) contain a provision to the effect that protection and assistance under the arrangements may be terminated if the witness breaches a term of the memorandum.

(2) A memorandum of understanding may contain provisions relating to any matter for which it may be necessary or convenient to make provision.

(3) Section 5(3), (4) and (5) apply to a memorandum of understanding entered into under this section.

9S Options for protection and assistance may be considered simultaneously

Nothing in this Act prevents the Chief Commissioner from considering simultaneously whether to include a witness

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in the Victorian witness protection program and whether to provide alternative protection arrangements to the witness.".

13 Information not to be disclosed

(1) In section 10(1) of the Principal Act—

(a) in paragraph (c), for "Court." substitute "Court; or";

(b) after paragraph (c) insert—

"(d) for the purpose of enabling the IBAC to perform its functions under this Act; or

(e) for the purpose of enabling the Public Interest Monitor to perform the functions of the Public Interest Monitor under this Act.".

(2) In section 10(3)(b) of the Principal Act, after "understanding" insert "under section 5".

(3) After section 10(3)(bd) of the Principal Act insert—

"(be) the fact that the witness or a member of the family of the witness has entered into a memorandum of understanding under section 9R; or

(bf) details of the memorandum of understanding under section 9R; or".

(4) After section 10(5) of the Principal Act insert—

"(5A) A person must not, without lawful authority or reasonable excuse, disclose information in Victoria or elsewhere—

(a) about the identity or location of a person to whom alternative protection arrangements are being or have been provided; or

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(b) that compromises the security of such a person.

Penalty: Level 5 imprisonment (maximum 10 years).".

(5) In section 10(7) of the Principal Act, for "(5) and (6)" substitute "(5), (5A) and (6)".

14 Disclosure of information about identity etc. in proceedings

(1) In section 10A(1) of the Principal Act—

(a) in paragraph (c), for "program." substitute "program; or";

(b) after paragraph (c) insert—

"(d) the original name of a person to whom alternative protection arrangements are being provided; or

(e) the fact that a person is being provided with alternative protection arrangements; or

(f) the fact that a person has undergone or is undergoing assessment for the provision of alternative protection arrangements.".

(2) In section 10A(2)(a), (b) and (c)(i) of the Principal Act, for "the matter referred to in subsection (1)(a), (b) or (c)" substitute "the matter or matters referred to in subsection (1)".

15 Immunity from proceedings

(1) Insert the following heading to section 12 of the Principal Act—

"Privilege of matters and things relating to performance of duties in accordance with this Act".

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(2) Section 12(1)(e), (1)(f), (3) and (4) of the Principal Act are repealed.

16 New sections 12A and 12B inserted


"12A Immunity from civil action

(1) No civil action lies against any person who is or has been the Chief Commissioner or a delegate of the Chief Commissioner in respect of—

(a) a key witness protection decision taken by the person in their capacity as the Chief Commissioner or a delegate of the Chief Commissioner; or

(b) any act, matter or thing done by the person in their capacity as the Chief Commissioner or a delegate of the Chief Commissioner in the process of making a key witness protection decision.

(2) For the purposes of subsection (1), a key witness protection decision means—

(a) a decision whether or not to include a witness in the Victorian witness protection program under section 3B; or

(b) a decision whether or not to provide alternative protection arrangements to a witness under section 9P; or

(c) a decision relating to the giving of interim protection to a person under Division 2 or authorising the person to acquire and use an assumed identity under Division 3; or

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(d) a decision relating to the suspension or termination of witness protection and assistance under Division 5, including—

(i) the restoration of a person's former identity; and

(ii) applying for an order under section 20A(2) in relation to children of participants, or former participants, who have no former identity.

(3) No civil action lies against any of the following persons in respect of any act, matter or thing done by that person in the course of the person's duties carried out in accordance with this Act—

(a) the Registrar;

(b) a person employed or appointed under section 40 of the Registration of Births Deaths and Marriages Act 1959;

(c) a person appointed or employed under section 7 of the Births, Deaths and Marriages Registration Act 1996.

Note

See also Division 8 of Part 4 of the Victoria Police Act 2013 which provides immunity for police officers in certain circumstances in relation to acts done or omitted to be done in the course of the police officer's duty.

12B Investigations of complaints by the IBAC

Nothing in section 12 or 12A prevents the IBAC from investigating a complaint in relation to the conduct of the Chief Commissioner or another police officer in relation to this Act.".

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17 New section 15AA inserted


"15AA Review of protection and assistance provided to witnesses

At least once every two years, the Chief Commissioner must review the protection and assistance provided to a witness and any member of the family of the witness under—

(a) the Victorian witness protection program; or

(b) alternative protection arrangements.".

18 Suspension of protection and assistance

(1) After section 15A(1) of the Principal Act insert—

"(1A) The Chief Commissioner, by giving written notice to a witness, may suspend the provision of protection and assistance to the witness or a member of the family of the witness under alternative protection arrangements if the Chief Commissioner is satisfied that the witness has done or intends to do something that limits the ability of the Chief Commissioner to provide adequate protection to the witness or family member.Examples

The witness may have done something that results in the witness being in custody, or may intend to travel to a place despite a warning from the Chief Commissioner not to go there because of the risk of harm to the witness.".

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(2) In section 15A(2) of the Principal Act—

(a) for "this section" substitute "subsection (1) or (1A)";

(b) after "participant" insert "or witness (as the case may be)".

(3) For section 15A(3) of the Principal Act substitute—

"(3) To avoid doubt—

(a) despite the suspension of protection and assistance under subsection (1), the participant continues to be a participant during the period of suspension; and

(b) despite the suspension of protection and assistance under subsection (1A), the alternative protection arrangements provided to the witness may resume under the terms of the memorandum of understanding that gave effect to those arrangements on the lifting of the suspension.".

19 Termination of protection and assistance

(1) In section 16(1) and (2) of the Principal Act, after "program" insert "or alternative protection arrangements".

(2) For section 16(3)(d) of the Principal Act, before "the person's conduct" insert "in the case of a person who is a participant in the Victoria witness protection program,".

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20 New Part 2A inserted

After section 20A of the Principal Act insert—

"Part 2A—Public accountability, monitoring and reporting

Division 1—Record keeping20B Record keeping

(1) The Chief Commissioner must ensure that there are kept in relation to the matters specified in subsection (2) any records that are reasonably required by the IBAC to enable it to carry out its functions under this Act.

(2) For the purposes of subsection (1), the Chief Commissioner must ensure records in relation to the following matters are kept—

(a) decisions and actions taken by the Chief Commissioner, delegates of the Chief Commissioner and other police officers under this Act or any regulations made under this Act;

(b) memoranda of understanding entered into under section 5 or 9R;

(c) court orders made under this Act;

(d) arrangements made with approved authorities.

(3) The Chief Commissioner must consult with the IBAC to determine which records are required by the IBAC to enable it to carry out its functions under this Act.

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(4) The Minister may—

(a) consult with the Chief Commissioner and the IBAC to determine which records are required to enable the IBAC to carry out its functions under this Act; and

(b) after that consultation, by written notice, require the Chief Commissioner to ensure that the records specified in the notice are kept for that purpose.

(5) The Minister must give to the IBAC a copy of any notice given to the Chief Commissioner under subsection (4)(b).

Division 2—Independent Broad-based Anti-corruption Commission

20C Functions of the IBAC

The IBAC has the following functions under this Act—

(a) to monitor compliance by the Chief Commissioner with the record keeping requirements under this Act;

(b) to make recommendations and to report to the Chief Commissioner on any matter arising out of the IBAC's monitoring function under this Act;

(c) to provide to the Public Interest Monitor any information that the IBAC reasonably considers is relevant to the performance of the functions of the Public Interest Monitor under this Act.

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20D IBAC to be given reasonable assistance

The Chief Commissioner must give, and must ensure that any other member of Victoria Police personnel gives, the IBAC any assistance that the IBAC reasonably requires to enable the IBAC to perform its functions under this Act.

20E Powers in relation to monitoring

(1) For the purposes of monitoring compliance by the Chief Commissioner with the record keeping requirements under this Act, the IBAC Commissioner must ensure that an inspection under this section is carried out by an authorised officer at least once each financial year.

(2) An authorised officer may, after notifying the Chief Commissioner of the intended entry—

(a) enter at any time premises occupied by Victoria Police at which the IBAC Commissioner reasonably believes there are documents relevant to the IBAC's monitoring function under this Act; and

(b) inspect or copy any document found at those premises; and

(c) do anything necessary or convenient to be done to enable an inspection to be carried out under this section.

(3) For the purposes of this section, an authorised officer is—

(a) the IBAC Commissioner; or

(b) a sworn IBAC Officer who is authorised under subsection (4).

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(4) The IBAC Commissioner may authorise a sworn IBAC Officer to exercise the powers of an authorised officer under this section.

20F Recommendations

(1) The IBAC may at any time make recommendations to the Chief Commissioner about action that should be taken in relation to a matter arising out of the IBAC's monitoring function.

(2) Within a reasonable time after receiving a recommendation under subsection (1), the Chief Commissioner must—

(a) take the recommended action; or

(b) if the Chief Commissioner has not taken the recommended action or does not intend to take the recommended action—give a report to the IBAC stating the reason for not taking or intending to take the action.

20G Reports on monitoring compliance

(1) The IBAC may at any time give the Minister a written report on—

(a) the results of any inspections carried out under section 20E; and

(b) compliance by the Chief Commissioner with the record keeping requirements under this Act; and

(c) any recommendations under section 20F and the action taken by the Chief Commissioner in response to the recommendations.

(2) The IBAC must give the Minister a report under subsection (1)—

(a) at least once each financial year; and

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(b) if requested by the Minister to do so—as soon as practicable after receiving the request.

(3) The IBAC must not include in a report under subsection (1) any information that would—

(a) prejudice a criminal investigation, criminal proceeding or other legal proceeding of which the IBAC is aware; or

(b) compromise the operational activities or methodologies of Victoria Police or of any authority or body referred to in the definition of approved authority; or

(c) disclose information about the identity or location, or compromise the security, of a person—

(i) who is or has been included in the Victorian witness protection program; or

(ii) to whom alternative protection arrangements are being or have been provided.

(4) The IBAC must give a copy of any report under subsection (1) to the Chief Commissioner.

20H Immunity of the IBAC and IBAC Officers

(1) The IBAC or a sworn IBAC Officer is not personally liable for anything necessarily or reasonably done or omitted to be done in good faith—

(a) in the performance of a duty or a function or the exercise of a power under this Act; or

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(b) in the reasonable belief that the act or omission was in the performance of a duty or a function or the exercise of a power under this Act.

(2) Any liability resulting from an act or omission that would, but for subsection (1), attach to the IBAC or a sworn IBAC Officer attaches instead to the State.

Division 3—Public Interest Monitor20I Meaning of relevant decision

(1) In this Division, a relevant decision means—

(a) a decision whether or not to include a witness in the Victorian witness protection program; and

(b) a decision whether or not to provide alternative protection arrangements to a witness; and

(c) subject to subsection (2), a decision whether to suspend or terminate protection and assistance provided to a witness under the Victorian witness protection program or alternative protection arrangements (excluding the voluntary termination of protection by the witness).

(2) A decision referred to in subsection (1)(c), is not a relevant decision unless the Public Interest Monitor considers it appropriate to exercise the function of the Public Interest Monitor under section 20J(1)(a) in respect of that decision.

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20J Functions of the Public Interest Monitor

(1) The Public Interest Monitor has the following functions under this Act—

(a) to inform the making of a relevant decision by the Chief Commissioner by—

(i) testing the content and sufficiency of the information relied on by the Chief Commissioner and considering the circumstances of the witness; and

(ii) making recommendations or reporting to the Chief Commissioner as to the appropriateness of any of the options under consideration, having regard to the public interest and the principles set out in section 3AA;

(b) to make recommendations and to report to the Chief Commissioner at any time on any matter arising out of the Public Interest Monitor's functions under this Act;

(c) to provide to the IBAC any information that the Public Interest Monitor reasonably considers is relevant to the performance of the functions of the IBAC under this Act.

(2) For the purpose of testing the matters referred to in subsection (1)(a)(i), the Public Interest Monitor may require any member of Victoria Police personnel whom the Public Interest Monitor believes has information concerning the relevant decision under

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consideration to answer questions relating to the relevant decision.

(3) The Public Interest Monitor has power to do all things necessary or convenient to be done for, or in connection with, the performance of the functions of the Public Interest Monitor under this Act.

20K Chief Commissioner to notify the Public Interest Monitor of scheduled decisions

(1) The Chief Commissioner must notify the Public Interest Monitor when a decision referred to in section 20I(1) is due to be made.

(2) A notification under subsection (1) must—

(a) be given as soon as practicable after the decision has been scheduled to be made; and

(b) be in accordance with the regulations.

(3) Before a decision referred to in section 20I(1) is made, the Chief Commissioner must ensure that the Public Interest Monitor is given copies of all documents that the Chief Commissioner will consider in making the decision.

20L Full disclosure to the Public Interest Monitor

(1) The following persons must fully disclose to the Public Interest Monitor all information held by, or known to, the person that is relevant for the performance of the Public Interest Monitor's function under section 20J(1)(a)—

(a) the Chief Commissioner;

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(b) a member of Victoria Police personnel who is required by the Public Interest Monitor under section 20J(2) to answer questions.

(2) A person referred to in subsection (1) must not knowingly or recklessly fail to comply with that subsection.

20M Chief Commissioner to have regard to recommendations and reports of the Public Interest Monitor

In making a relevant decision, the Chief Commissioner must have regard to any recommendation or report of the Public Interest Monitor given to the Chief Commissioner under section 20J(1)(a) in respect of the relevant decision.

20N Return of documents

The Public Interest Monitor must return to the Chief Commissioner any documents given to the Public Interest Monitor by the Chief Commissioner relating to a decision referred to in section 20I(1) as soon as practicable after the Chief Commissioner has made the decision.

20O Recommendations

(1) The Public Interest Monitor may at any time make recommendations to the Chief Commissioner about action that should be taken in relation to a matter arising out of the Public Interest Monitor's functions under this Act.

(2) Within a reasonable time after receiving a recommendation under subsection (1), the Chief Commissioner must—

(a) take the recommended action; or

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(b) if the Chief Commissioner has not taken the recommended action or does not intend to take the recommended action—give a report to the Public Interest Monitor stating the reason for not taking or intending to take the action.

20P Reports on performance of functions under this Act

(1) The Principal Public Interest Monitor may at any time give the Minister a written report on the performance of the functions of the Public Interest Monitor under this Act.

(2) The Principal Public Interest Monitor must give the Minister a report under subsection (1)—

(a) at least once each financial year; and

(b) if requested by the Minister to do so—as soon as practicable after receiving the request.

(3) The Principal Public Interest Monitor must not include in a report under subsection (1) any information that would—

(a) prejudice a criminal investigation, criminal proceeding or other legal proceeding of which the Public Interest Monitor is aware; or



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(4) The Principal Public Interest Monitor must give a copy of any report under subsection (1) to the Chief Commissioner.

20Q Immunity of the Public Interest Monitor

(1) The Public Interest Monitor is not personally liable for anything necessarily or reasonably done or omitted to be done in good faith—

(a) in the performance of a duty or a function or the exercise of a power under this Act or any regulations made under this Act; or

(b) in the reasonable belief that the act or omission was in the performance of a duty or a function or the exercise of a power under this Act or any regulations made under this Act.

(2) Any liability resulting from an act or omission that would, but for subsection (1), attach to the Public Interest Monitor attaches instead to the State.

Division 4—Reporting20R Report to the Minister

(1) As soon as practicable after the end of each financial year, the Chief Commissioner must submit to the Minister a report on the general operations, performance and effectiveness of the Victorian witness protection program and

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alternative protection arrangements provided under this Act.

(2) The Chief Commissioner must advise the Minister of any information in the report that, in the opinion of the Chief Commissioner, should be excluded from the report before the report is laid before Parliament because the information, if made public, could reasonably be expected to—

(a) prejudice a criminal investigation, criminal proceeding or other legal proceeding; or





(3) The Minister must—

(a) exclude information from the report if satisfied on the advice of the Chief Commissioner of any of the grounds set out in subsection (2); and

(b) 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.".

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21 Delegation by Chief Commissioner

For section 23A(1) of the Principal Act and the table at the foot of section 23A(1) of the Principal Act substitute—

"(1) The Chief Commissioner, by instrument, may delegate to a Deputy Commissioner a duty, function or power of the Chief Commissioner under any of the following provisions—

(a) sections 3A and 9O, to the extent that they provide for the taking of action to protect the safety or welfare of a witness or a member of the family of a witness;

(b) sections 3B, 3C, 4, 5, 9A, 9B, 9P, 9Q, 9R, 10(4)(a), 15, 15A, 15AA, 16, 19(1) and (2), 20K, 21, 23 and 28.

(1A) The Chief Commissioner, by instrument, may delegate a duty, function or power of the Chief Commissioner under Division 2 and 3 of Part 2 to a police officer of, or above, the rank of Superintendent.".

22 Freedom of Information Act 1982

In section 24(1) of the Principal Act—

(a) in paragraph (a)(ii), for "understanding;" substitute "understanding entered into under that section;";

(b) after paragraph (a)(iib) insert—

"(iic) the identity or location of a person to whom alternative protection arrangements are being or have been provided; or

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(iid) the fact that a person has entered into a memorandum of understanding under section 9R or the details of a memorandum of understanding entered into under that section; or";

(c) in paragraph (b), for "law." substitute "law; or";

(d) after paragraph (b) insert—

"(c) a document to the extent that it discloses any information received by the Chief Commissioner or the Minister from the IBAC or the Public Interest Monitor under this Act.".

23 Repeal of section 25

Section 25 of the Principal Act is repealed.

24 Regulations

After section 25A(2) of the Principal Act insert—

"(3) Regulations may be made under this Act in relation to—

(a) the requirements for transmission, disposal and storage of documents or information that the Public Interest Monitor receives in performing the functions of the Public Interest Monitor under this Act; and

(b) the notifications required to be given to the Public Interest Monitor under section 20K.".

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25 New section 29 inserted


"29 Transitional provision—Witness Protection Amendment Act 2016

(1) Despite section 9O(1)(a), the Chief Commissioner may decide to provide alternative protection arrangements to a witness who has not been considered under section 3B for inclusion in the Victorian witness protection program.

(2) This section ceases to have effect on the first anniversary of the day on which section 12 of the Witness Protection Amendment Act 2016 comes into operation.".

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Part 3—Consequential amendments

Division 1—Crimes (Assumed Identities) Act 200426 Purposes

In section 1(1)(b) of the Crimes (Assumed Identities) Act 2004, after "Victorian witness protection program" insert "and alternative protection arrangements under the Witness Protection Act 1991".

27 Definitions

In section 3 of the Crimes (Assumed Identities) Act 2004 insert the following definition—

"alternative protection arrangements has the same meaning as it has in the Witness Protection Act 1991;".

28 Application for authority to acquire or use assumed identity

In section 4(3)(b)(via) of the Crimes (Assumed Identities) Act 2004, after "Victorian witness protection program" insert "or alternative protection arrangements".

29 Determination of applications

In section 5(2)(a)(ii) and (ab) of the Crimes (Assumed Identities) Act 2004, after "Victorian witness protection program" insert "or alternative protection arrangements".

30 Disclosing information about assumed identity

In section 30(2)(a)(iii) and (b)(iii) of the Crimes (Assumed Identities) Act 2004, after "Victorian witness protection program" insert "or alternative protection arrangements".

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Division 2—Independent Broad-based Anti-corruption Commission Act 2011

31 Matters to be included in annual report

After section 165(5) of the Independent Broad-based Anti-corruption Commission Act 2011 insert—

"(5A) The IBAC must not include in its annual report information concerning its functions under the Witness Protection Act 1991 that would—

(a) prejudice a criminal investigation, criminal proceeding or other legal proceeding of which the IBAC is aware; or

(b) compromise the operational activities or methodologies of Victoria Police or of any authority or body referred to in the definition of approved authority in section 3(1) of the Witness Protection Act 1991; or


(i) who is or has been included in the Victorian witness protection program, within the meaning of the Witness Protection Act 1991; or

(ii) to whom alternative protection arrangements, within the meaning of the Witness Protection Act 1991, are being or have been provided.".

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Division 3—Public Interest Monitor Act 201132 Annual report

(1) After section 19(4) of the Public Interest Monitor Act 2011 insert—

"(4A) A report for a financial year must not include information concerning the functions of the Public Interest Monitor under the Witness Protection Act 1991 that would—

(a) prejudice a criminal investigation, criminal proceeding or other legal proceeding of which the Public Interest Monitor is aware; or





(2) In section 19(5) of the Public Interest Monitor Act 2011, for "this section" substitute

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"subsection (3)".

Division 4—Victoria Police Act 201333 Definitions

In section 3(1) of the Victoria Police Act 2013 insert the following definition—

"Public Interest Monitor has the same meaning as it has in section 4 of the Public Interest Monitor Act 2011;".

34 Ministerial directions

After section 10(4)(a) of the Victoria Police Act 2013 insert—

"(ab) the Public Interest Monitor;".

Division 5—Victorian Inspectorate Act 201135 Definitions

In section 3(1) of the Victorian Inspectorate Act 2011, in the definition of prescribed obligations, after paragraph (e) insert—

"(f) the requirement that applies to the Public Interest Monitor under section 20N of the Witness Protection Act 1991;

(g) any requirement under the regulations made under the Witness Protection Act 1991 relating to the transmission, disposal and storage of documents or information that the Public Interest Monitor receives in performing the functions of the Public Interest Monitor under that Act;".

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36 Functions of the Victorian Inspectorate

For section 11(2)(g) of the Victorian Inspectorate Act 2011 substitute—

"(g) to inspect and audit relevant records kept by the Public Interest Monitor under—

(i) the Public Interest Monitor Act 2011; and

(ii) the Witness Protection Act 1991—

for the purpose of monitoring compliance with the prescribed obligations;".

37 Specific powers in relation to the Public Interest Monitors

After section 13(10) of the Victorian Inspectorate Act 2011 insert—

"(10A) A report for the purposes of subsection (7) or (9) that relates to the functions of the Public Interest Monitor under the Witness Protection Act 1991 must not include any information that would—

(a) prejudice a criminal investigation, criminal proceeding or other legal proceeding of which the Victorian Inspectorate is aware; or



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38 Special reports


"(14A) A report for the purposes of subsection (12) that relates to the functions of the Public Interest Monitor under the Witness Protection Act 1991 must not include any information that would—




(i) who is or has been included in the Victorian witness protection program, within the meaning of

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the Witness Protection Act 1991; or


39 Matters to be included in annual report


"(17) A report for the purposes of subsection (14) that relates to the functions of the Public Interest Monitor under the Witness Protection Act 1991 must not include any information that would—





(ii) to whom alternative protection arrangements, within the

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meaning of the Witness Protection Act 1991, are being or have been provided.".

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Part 4—Amendment of Crimes Act 1958—intimidation and reprisals relating to

witnesses40 New Division 5A of Part I inserted

After section 255 of the Crimes Act 1958 insert—

"Division 5A—Intimidation and reprisals relating to witnesses, etc.

256 Interpretation

(1) For the purposes of this Division, a person is involved in a criminal investigation if the person is—

(a) a witness of an alleged crime or crimes being investigated; or

(b) a victim of an alleged crime or crimes being investigated; or

(c) involved in the investigation in any other capacity.

(2) For the purposes of this Division, a person is involved in a criminal proceeding if the person is—

(a) a witness in that proceeding; or

(b) a juror in that proceeding; or

(c) involved in the proceeding in any other capacity.

(3) In this Division—

detriment, to a person, includes—

(a) loss or damage to a person's property or business;

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(b) discrimination, disadvantage or adverse treatment in relation to a person's employment, career, business, trade, profession or enterprise.

257 Intimidation or reprisals relating to involvement in criminal investigation or criminal proceeding

(1) A person (the offender) must not—

(a) use or procure the use of intimidation towards a person (the victim); or

(b) cause or procure any physical harm or detriment of any kind to a person (the victim)—

because the offender knows or believes that the victim or another person is, was, may be or may become involved in a criminal investigation or a criminal proceeding.

Penalty: Level 5 imprisonment (10 years maximum).

(2) For the purposes of subsection (1)(a), a person uses intimidation towards a victim if—

(a) the person engages in conduct that could reasonably be expected to arouse apprehension or fear in the victim for the safety of the victim or another person or of detriment to the victim or another person; and

(b) either—

(i) the person knows that engaging in that conduct would be likely to arouse that apprehension or fear; or

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(ii) in all the particular circumstances, the person ought to have known that engaging in that conduct would be likely to arouse that apprehension or fear.

(3) Subsection (2) applies whether or not the conduct arouses apprehension or fear in the victim.

(4) Subsection (1) does not apply to conduct engaged in by a person performing official duties for the purpose of—

(a) the enforcement of the criminal law; or

(b) the administration of any Act; or

(c) the enforcement of a law imposing a pecuniary penalty; or

(d) the execution of a warrant; or

(e) the protection of public revenue—

that, but for this subsection, would constitute an offence against subsection (1).

(5) In a proceeding for an offence against subsection (1) it is a defence to the charge for the accused to prove that the conduct was engaged in without malice—

(a) in the normal course of a lawful business, trade, profession or enterprise (including that of any body or person whose business, or whose principal business, is the publication, or arranging the publication, of news or current affairs material); or

(b) for the purpose of an industrial dispute; or

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(c) for the purpose of engaging in political activities or discussion or communicating with respect to public affairs.

(6) For the purposes of this section, it is immaterial that—

(a) some or all of the conduct constituting an offence against subsection (1) occurred outside Victoria, so long as the victim was in Victoria at the time at which that conduct occurred; or

(b) the victim was outside Victoria at the time at which some or all of the conduct constituting an offence against subsection (1) occurred, so long as that conduct occurred in Victoria; or

(c) some or all of the conduct constituting an offence against subsection (1) occurred outside Victoria and the victim was outside Victoria at the relevant time or times, so long as the relevant criminal investigation or criminal proceeding is occurring, occurred, will occur or may occur in Victoria.".

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Part 5—Repeal41 Repeal of amending Act

This Act is repealed on 1 July 2018.Note

The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

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Endnotes1 General information

See www.legislation.vic.gov.au for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information.

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http://www.legislation.vic.gov.au/

† Minister's second reading speech—

Legislative Assembly: 24 March 2016

Legislative Council: 26 May 2016

The long title for the Bill for this Act was "A Bill for an Act to amend the Witness Protection Act 1991 to extend its scope, improve the governance and administration of protection and assistance provided under that Act and promote community confidence in its operation and to make consequential amendments to other Acts, to amend the Crimes Act 1958 to create a new offence relating to intimidation towards, and reprisals against, witnesses, and for other purposes."

witness protection amendment act 2016 - …file/16-034a.docx · web viewwitness protection...

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