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Witness Protection Amendment Act 2014 No. 43 of 2014

TABLE OF PROVISIONSSection Page

1 Purpose 12 Commencement 13 Principal Act 24 Insertion of Part heading 25 Definitions 26 Insertion of Part and Division heading 37 Victorian witness protection program 38 Inclusion in the Victorian witness protection program 49 Special commercial arrangements by Chief Commissioner 510 New section 4 substituted 5

4 Witness to disclose certain matters before being included in program 5

11 Memorandum of understanding 912 Application for court order 913 Effect of authorizing court order 914 Effect of entries made under this Act 915 New sections 9A and 9B inserted 10

9A Dealing with rights and obligations of participants 109B Requirement on participant involved in civil

proceedings 1216 New Divisions 2, 3 and 4 inserted in Part 2 13

Division 2—Interim witness protection 13

9C Interim protection 139D Duration of interim protection declaration 149E Cessation of interim protection declaration 14

Division 3—Temporary assumed identities and identity documents 15

9F Definitions 159G Application for authority to acquire and use assumed

identity 169H Authority to acquire and use assumed identity 179I Duration of authority 199J Variation or cancellation of authority 199K Evidence of assumed identity 20

1

9L Protection from criminal liability—officers of issuing agencies 20

9M Protection from criminal liability—authorised persons 21

9N Misuse of assumed identity 21

Division 4—General provisions applying to witness protection and assistance 22

17 Information not to be disclosed 2218 New section 10A inserted 23

10A Disclosure of information about identity etc. in proceedings 23

19 Offences in relation to documents 2520 Immunity from proceedings 2521 New section 13 substituted 25

13 Court proceedings under this Act to be closed 2522 Special provision in case of marriage 2523 Insertion of Division 5 in Part 2 26

Division 5—Suspension and termination of witness protection and assistance 26

15A Suspension of protection and assistance 2624 Cessation of protection and assistance 2725 Notice of involuntary termination, review and appeal 2826 When does involuntary termination take effect? 2927 Restoration of former identity 2928 When does a decision to restore a person's former identity

take effect? 2929 New section 20A inserted 30

20A Children of participant or recognised participant who have no former identity 30

30 Insertion of Part heading 3231 Arrangements with approved authorities 3232 Part 4 inserted 32

PART 4—GENERAL 32

23A Delegation by Chief Commissioner 3233 Freedom of Information Act 1982 3434 New section 25A inserted 35

25A Regulations 3535 Insertion of Part heading 3636 New section 28 inserted 36

28 Transitional provision—Witness Protection Amendment Act 2014 36

37 Amendments consequential on Victoria Police Act 2013 3738 Repeal of amending Act 38

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ENDNOTES 39

Witness Protection Amendment Act 2014†

No. 43 of 2014

[Assented to 17 June 2014]

The Parliament of Victoria enacts:

1 Purpose

The purpose of this Act is to amend the Witness Protection Act 1991 to improve the operation of the Victorian witness protection program.

2 Commencement

(1) Subject to subsection (3), this Act, other than section 37, comes into operation on a day or days to be proclaimed.

Victoria

1

(2) Section 37 comes into operation on the later of—

(a) the day on which section 5 comes into operation; and

(b) the day on which section 278 of the Victoria Police Act 2013 comes into operation.

(3) If a provision of this Act, other than section 37, does not come into operation before 1 December 2014 it comes into operation on that day.

3 Principal Acts. 3

See:Act No.15/1991.Reprint No. 4as at21 August 2013.LawToday:www.legislation.vic.gov.au

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

4 Insertion of Part heading

Before section 1 of the Principal Act insert—

"PART 1—PRELIMINARY".

5 Definitions

In section 3(1) of the Principal Act—

(a) insert the following definitions—

"Chief Commissioner means the Chief Commissioner of Police appointed under the Police Regulation Act 1958;

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commission of inquiry means—

(a) a Commission of Inquiry established under section 88B of the Constitution Act 1975; or

(b) a Board of Inquiry established under section 88C of the Constitution Act 1975;

interim protection declaration means a declaration under section 9C(1);";

(b) in the definition of authorizing court order, after "Act" insert ", other than an order made under section 9(2) or 20A(2)";

(c) at the foot of the definition of participant insert—"Note

In sections 10, 10A and 24, participant has an expanded meaning—see sections 10(8), 10A(4) and 24(2).";

(d) at the foot of the definition of recognised participant insert—"Note

In sections 10 and 24, recognised participant has an expanded meaning—see sections 10(8) and 24(2).";

(e) in the definitions of Victorian witness protection program and witness, omit "of Police".

6 Insertion of Part and Division heading

Before section 3A of the Principal Act insert—

"PART 2—WITNESS PROTECTION AND ASSISTANCE

Division 1—Victorian witness protection program".

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7 Victorian witness protection program

In section 3A(1), (2)(e) and (3) of the Principal Act, omit "of Police".

8 Inclusion in the Victorian witness protection program

(1) In section 3B(1) of the Principal Act, for "The Chief Commissioner of Police has the sole responsibility of deciding" substitute "The Chief Commissioner may decide".

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

"(3) In deciding whether to include a witness in the Victorian witness protection program, the Chief Commissioner must have regard to—

(a) whether the witness has a criminal record, particularly in respect of crimes of violence, and whether that record indicates a risk to the public if the witness is included in the program; and

(b) if a psychological or psychiatric examination or evaluation of the witness has been conducted to determine the witness's suitability for inclusion in the program—that examination or evaluation; and

(c) the seriousness of the offence to which any relevant evidence or statement relates; and

(d) the nature and importance of any relevant evidence or statement; and

(e) whether there are viable alternative methods of protecting the witness; and

(f) the nature of the perceived danger to the witness; and

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(g) the nature of the witness's relationship to other witnesses being assessed for inclusion in the program—

and may have regard to any other matters that the Commissioner considers relevant.

(4) The Chief Commissioner must not include a witness in the Victorian witness protection program if the Chief Commissioner does not, in his or her opinion, have enough information to assess the matters referred to in subsection (3) in relation to the witness.".

9 Special commercial arrangements by Chief Commissioner

In section 3C of the Principal Act, omit "of Police".

10 New section 4 substituted

For section 4 of the Principal Act substitute—

"4 Witness to disclose certain matters before being included in program

(1) A witness who wishes to be included in the Victorian witness protection program must provide the Chief Commissioner with all information necessary for the Chief Commissioner to decide whether the witness should be included.

(2) Without limiting subsection (1), a witness must—

(a) disclose to the Chief Commissioner details of all outstanding legal obligations of the witness; and

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(b) disclose to the Chief Commissioner details of any outstanding debts of the witness, including amounts outstanding for any tax under a law of the Commonwealth or of a State or Territory; and

(c) disclose to the Chief Commissioner details of the witness's criminal history; and

(d) disclose to the Chief Commissioner details of any civil proceedings that have been instituted by or against the witness; and

(e) disclose to the Chief Commissioner details of any bankruptcy proceedings that have been instituted against the witness; and

(f) inform the Chief Commissioner whether the witness is an insolvent under administration; and

(g) inform the Chief Commissioner whether there are any restrictions on the witness's holding positions in companies, whether public or private; and

(h) disclose to the Chief Commissioner details of the witness's immigration status; and

(i) disclose to the Chief Commissioner details of financial liabilities and assets (whether real or personal) of the witness in relation to which—

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(i) a record is kept under a law of the Commonwealth or of a State or Territory; or

(ii) the witness has entered into a contractual arrangement; and

(j) disclose to the Chief Commissioner details of any cash held by the witness, whether in accounts or otherwise; and

(k) disclose to the Chief Commissioner details of any reparation order that is in force against the witness; and

(l) inform the Chief Commissioner whether any of the witness's property (whether real or personal) is liable to forfeiture or confiscation or is subject to restraint under a law of the Commonwealth or of a State or Territory; and

(m) inform the Chief Commissioner of the witness's general medical condition; and

(n) disclose to the Chief Commissioner details of any relevant court orders or arrangements relating to custody of, or access to, children; and

(o) disclose to the Chief Commissioner details of any business dealings in which the witness is involved; and

(p) disclose to the Chief Commissioner details of court orders relating to sentences imposed on the witness to which the witness is subject in relation to criminal prosecutions; and

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s. 10

(q) disclose to the Chief Commissioner details of any parole or licence to which the witness is subject; and

(r) give the Chief Commissioner copies of any documents relating to any such orders, parole or licence; and

(s) disclose to the Chief Commissioner details of any arrangements that the witness has made for—

(i) the service of documents on the witness; and

(ii) representation in proceedings in court; and

(iii) enforcement of judgments in the witness's favour; and

(iv) compliance with the enforcement of judgments against the witness.

(3) If required to do so by the Chief Commissioner, a witness must give the Chief Commissioner a copy of any document in the witness's possession or control relating to a matter referred to in subsection (2).

(4) The Chief Commissioner may—

(a) require a witness to undergo—

(i) medical tests or examinations; or

(ii) 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—

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for the purposes of assessing whether the witness should be included in the Victorian witness protection program.".

11 Memorandum of understanding

In section 5 of the Principal Act—

(a) in subsection (1A), omit "of Police";

(b) after subsection (2)(f) insert—

"(fa) obligations on the witness to disclose, when lawfully required to do so, the witness's criminal history in respect of his or her original identity or in respect of any identity acquired under this Act in relation to which an entry has been made under section 8; and";

(c) in subsections (3) and (5), omit "of Police".

12 Application for court order

In section 6(1) and (2) of the Principal Act, omit "of Police".

13 Effect of authorizing court order

(1) In section 8(c) of the Principal Act, omit "of Police".

(2) At the end of section 8 of the Principal Act insert—

"(2) Section 53 of the Births, Deaths and Marriages Registration Act 1996 does not apply in respect of any statement or entry made for the purposes of this Act.".

14 Effect of entries made under this Act

(1) In section 9(2) of the Principal Act omit "by the Registrar".

(2) After section 9(3) of the Principal Act insert—

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"(4) An order under subsection (2) must nominate a member or members of the police force or an officer or officers of the approved authority to cancel the entry.

(5) The Registrar is required to give the member or members of the police force or officer or officers of the approved authority nominated in the order access to the register of births or register of marriages and to give any assistance that they may require to give effect to the order.".

15 New sections 9A and 9B inserted

After section 9 of the Principal Act insert—

"9A Dealing with rights and obligations of participants

(1) If a participant has any outstanding rights or obligations or is subject to any restrictions, the Chief Commissioner must take any action that is reasonably practicable to ensure that—

(a) those rights or obligations are dealt with according to law; and

(b) the person complies with those restrictions.

(2) That action may include—

(a) providing protection for the participant while the participant is attending court; and

(b) notifying a party or possible party to legal proceedings that the Chief Commissioner will accept process issued by a court or tribunal on behalf of the participant, and nominating a member of the police force for that purpose.

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(3) The Chief Commissioner must give written notice to a participant who has been provided with a new identity under the Victorian witness protection program if the Chief Commissioner is satisfied that the participant is using the new identity to—

(a) avoid obligations that were incurred before the new identity was established; or

(b) avoid complying with restrictions that were imposed on the person before the new identity was established.

(4) The notice must state—

(a) that the Chief Commissioner is satisfied of the matter specified in subsection (3)(a) or (b) (as the case requires); and

(b) that, unless the participant satisfies the Chief Commissioner that the obligations will be dealt with according to law or the restrictions will be complied with, the Chief Commissioner will take any action he or she considers reasonably necessary to ensure that they are dealt with according to law or complied with.

(5) That action may include informing a person who is seeking to enforce rights against the participant of the details of any property (whether real or personal) owned by the participant under his or her original identity or a former identity acquired under this Act.

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9B Requirement on participant involved in civil proceedings

(1) If a participant is to be involved, under the participant's current identity acquired under this Act, in a civil proceeding in which his or her identity is in issue, the participant must notify the Chief Commissioner of the participant's involvement in the proceeding.

(2) After being notified under subsection (1), the Chief Commissioner may take any action he or she considers appropriate in the circumstances.

(3) In this section—

civil proceeding means any proceeding in a court, a tribunal, a Royal Commission or a commission of inquiry (or in an equivalent body of the Commonwealth or of another State or of a Territory), other than a criminal proceeding, and, to avoid doubt, each of the following is part of a civil proceeding—

(a) a proceeding on an ex parte application (including an application made before pleadings are filed in a court);

(b) the discover, exchange, production, inspection or disclosure of intended evidence, documents and reports of persons intended to be called by a party to give evidence;

(c) an appeal proceeding;

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(d) an interlocutory or other proceeding prescribed by the regulations for the purposes of this paragraph.".

16 New Divisions 2, 3 and 4 inserted in Part 2


"Division 2—Interim witness protection

9C Interim protection

(1) The Chief Commissioner, by written notice to a witness, may declare that the witness is to be given interim protection under this Act if the Chief Commissioner—

(a) is considering whether to include the witness in the Victorian witness protection program; and

(b) believes that the witness or a member of the family of the witness is in urgent need of protection.

(2) The Chief Commissioner may make an interim protection declaration only with the prior written consent of—

(a) the witness to whom the declaration relates; or

(b) if the witness is under the age of 18 years, a parent or guardian of the witness.

(3) While an interim protection declaration is in force, the Chief Commissioner may take any action he or she thinks necessary and reasonable to protect the safety and welfare of a witness to whom an interim protection declaration relates or a member of the family of the witness, including any action referred to in section 3A(2), other than applying for a

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court order authorizing the making of a new entry in the register of births or register of marriages in respect of the witness or family member.

9D Duration of interim protection declaration

(1) Subject to section 9E, an interim protection declaration takes effect on the day that it is made and remains in force for the period specified in it, which must not exceed 3 months.

(2) The Chief Commissioner may extend an interim protection declaration for a further period not exceeding 3 months by giving written notice to the person to whom the declaration relates before the declaration ceases to be in force.

(3) An interim protection declaration may be extended only once under this section.

9E Cessation of interim protection declaration

(1) An interim protection declaration that is in force in accordance with section 9D ceases to be in force if the Chief Commissioner—

(a) enters into a memorandum of understanding with the witness in accordance with section 5; or

(b) notifies the witness of the Chief Commissioner's decision not to include the witness in the Victorian witness protection program.

(2) The Chief Commissioner must notify a witness to whom an interim protection declaration relates of the Chief Commissioner's decision not to include the

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witness in the Victorian witness protection program.

Division 3—Temporary assumed identities and identity documents

9F Definitions

In this Division—

authorised person means a person who is authorised by an authority to acquire and use an assumed identity;

authority means an authority granted under section 9H to acquire and use an assumed identity;

chief officer of an issuing agency means the chief executive officer (however described) of the agency;

evidence means evidence similar to that ordinarily produced or given by the government issuing agency;

government issuing agency, in relation to an authority, means any of the following named in the authority that issues evidence of identity—

(a) a person or body (whether incorporated or not) that performs any function of the Victorian government; or

(b) a person or body (whether incorporated or not) prescribed by the regulations for the purposes of this definition;

issuing agency means—

(a) a government issuing agency; or

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(b) a non-government issuing agency;

non-government issuing agency, in relation to an authority, means a person, body or entity (other than a government issuing agency) named in the authority that issues evidence of identity;

supervisor of an authorised person means the person who is appointed under section 9H(3) to supervise the acquisition and use of an assumed identity by the person.

9G Application for authority to acquire and use assumed identity

(1) A member of the police force may apply to the Chief Commissioner for an authority for a participant or a person to whom an interim protection declaration relates to acquire and use an assumed identity.

(2) An application—

(a) must be in writing; and

(b) must contain—

(i) the name of the applicant; and

(ii) the name of the person to be authorised to acquire or use an assumed identity; and

(iii) the name and rank of the person proposed to be appointed as supervisor; and

(iv) details of the proposed assumed identity; and

(v) reasons for the need to acquire or use an assumed identity; and

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(vi) details of the protection and assistance to be provided to the person in respect of whom the application is made.

(3) The Chief Commissioner may require the applicant to provide any additional information concerning the application that is necessary for the proper consideration of the application.

9H Authority to acquire and use assumed identity

(1) After considering an application for an authority to acquire or use an assumed identity, and any additional information under section 9G(3), the Chief Commissioner—

(a) may grant an authority to acquire and use the assumed identity, either unconditionally or subject to conditions; or

(b) may refuse the application.

(2) The Chief Commissioner may grant an authority to acquire and use an assumed identity only if he or she is satisfied that the assumed identity is needed urgently to protect the safety or welfare of the person in respect of whom the application is made.

(3) If an authority is granted, the Chief Commissioner must appoint a member of the police force of or above the rank of sergeant to supervise the acquisition and use of the assumed identity.

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(4) An authority—

(a) must be in writing; and

(b) must be signed by the person granting it; andNote

The authority may be granted by the Chief Commissioner or a delegate of the Chief Commissioner—see section 23A.

(c) must state—

(i) the name of the person granting the authority; and

(ii) the date of the authority; and

(iii) the name of the person authorised to acquire and use an assumed identity; and

(iv) the name and rank of the person's supervisor; and

(v) details of the assumed identity authorised; and

(vi) details of any evidence of the assumed identity that may be acquired under the authority; and

(vii) the conditions (if any) to which the authority is subject; and

(viii) the period for which the authority will remain in force, which must not exceed 3 months.

(5) An authorised person may acquire or use (or both) an assumed identity if the acquisition or use (or both) is in accordance with—

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(a) an authority; and

(b) any direction given by the person's supervisor.

9I Duration of authority

(1) Subject to section 9J, an authority takes effect on the day that it is made and remains in force for the period specified in it.

(2) The Chief Commissioner may extend an authority for a further period not exceeding 3 months by giving written notice to the authorised person and his or her supervisor before the authority ceases to be in force.

(3) An authority may be extended only once under this section.

9J Variation or cancellation of authority

(1) The Chief Commissioner—

(a) may vary or cancel an authority at any time; and

(b) must cancel an authority if the Chief Commissioner is satisfied that use of the assumed identity is no longer necessary.

(2) The Chief Commissioner must give written notice of the variation or cancellation to—

(a) the authorised person; and

(b) the authorised person's supervisor.

(3) The variation or cancellation takes effect—

(a) on the day the written notice is given to the authorised person; or

(b) if a later date of effect is stated in the notice—on the day stated.

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9K Evidence of assumed identity

(1) This section applies if an authority authorises a request under this section.

(2) The Chief Commissioner may request the chief officer of an issuing agency stated in the authority to—

(a) produce evidence of an assumed identity in accordance with the authority; and

(b) give evidence of the assumed identity to the supervisor named in the authority.

(3) The request must state a reasonable period for compliance with the request.

(4) A request cannot be made under this section for an entry or evidence of an entry in the register of births or register of marriages.

(5) The chief officer of a government issuing agency who receives a request under this section must comply with the request within the reasonable period stated in the request.

(6) The chief officer of a non-government issuing agency who receives a request under this section may comply with the request.

9L Protection from criminal liability—officers of issuing agencies

The chief officer, or an officer, of an issuing agency (whether government or non-government) who does something that, apart from this section, would be an offence, is not criminally responsible for the offence if the thing is done to comply with a request under section 9K.

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9M Protection from criminal liability—authorised persons

If an authorised person does something (whether in Victoria or elsewhere) that, apart from this section, would be an offence, the person is not criminally responsible for the offence if—

(a) the thing is done in the course of acquiring or using an assumed identity in accordance with an authority; and

(b) the thing is done in accordance with any direction by his or her supervisor under the authority; and

(c) doing the thing would not be an offence if the assumed identity were the person's real identity.

9N Misuse of assumed identity

An authorised person must not intentionally, knowingly or recklessly acquire evidence of, or use, an assumed identity covered by his or her authority if he or she knows that, or is reckless as to whether, the acquisition or use is not in accordance with—

(a) his or her authority; or

(b) the directions of his or her supervisor under the authority.

Penalty: Imprisonment for 2 years.

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Division 4—General provisions applying to witness protection and assistance".

17 Information not to be disclosed

(1) In section 10 of the Principal Act—

(a) in subsection (1), after "under this Act" insert "or any information relating to the acquisition of an assumed identity under Division 3";

(b) in subsection (2), for "of Police or an approved authority" substitute ", a member of the police force, an approved authority";

(c) after subsection (3)(b) insert—

"(ba) the fact that an interim protection declaration has been made in relation to him or her or a member of his or her family; or

(bb) details of the interim protection declaration; or

(bc) the fact that an authority has been granted under Division 3 in relation to him or her or a member of his or her family; or

(bd) details of the authority; or";

(d) in subsections (3)(c) and (4)(a), omit "of Police".

(2) After section 10(6) of the Principal Act insert—

"(7) Subsections (5) and (6) do not apply to—

(a) a disclosure that is authorised or required by an order of the Supreme Court; or

(b) a disclosure that is made by the Chief Commissioner or a Deputy Commissioner in the lawful

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s. 17s. 17

performance or exercise of a duty, function or power under this Act or a complementary witness protection law.


identity includes any individual characteristics by which a person is recognised, such as their name, nick-name, depiction or physical description, a physical feature or biometric identifier, their personal association with another person or anything that may reasonably lead to their identification;

participant includes a person in relation to whom an interim protection declaration has been made;

recognised participant includes a person in relation to whom a declaration or order that corresponds to an interim protection declaration has been made under a complementary witness protection law or who has otherwise received interim or temporary protection under a complementary witness protection law.".

18 New section 10A inserted


"10A Disclosure of information about identity etc. in proceedings

(1) This section applies if one or more of the following matters is in issue, or may be disclosed, in any proceeding before a court, a tribunal, a Royal Commission or a commission of inquiry—

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(a) the original identity, or a former identity acquired under this Act, of a participant; or

(b) the fact that a person is a participant; or

(c) the fact that a person has undergone or is undergoing assessment for inclusion in the Victorian witness protection program.

(2) The court, tribunal or commission must, unless it considers that it is not in the interests of justice to do so—

(a) hold the part of the proceeding that relates to the matter referred to in subsection (1)(a), (b) or (c) in private; and

(b) make an order prohibiting or restricting the publication of evidence given before it that, in its opinion, will ensure that the matter referred to in subsection (1)(a), (b) or (c) is not disclosed; and

(c) make any other orders that it considers appropriate to ensure that neither of the following is made public—

(i) the matter referred to in subsection (1)(a), (b) or (c);

(ii) information that may compromise the security of a person referred to in that subsection.

(3) To avoid doubt, subsection (2)(b) does not prevent 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.

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participant includes a person in relation to whom an interim protection declaration has been made.".

19 Offences in relation to documents


(a) in subsection (2), after "Registrar" insert ", at the direction of the Chief Commissioner,";

(b) in subsection (3), for "return to the Registrar" substitute "return to the Chief Commissioner".

20 Immunity from proceedings

In section 12(1)(c) and (4) of the Principal Act, omit "of Police".

21 New section 13 substituted

For section 13 of the Principal Act substitute—

"13 Court proceedings under this Act to be closed

An application to the Supreme Court for an order under section 7, 9, 10 or 20A must be heard in closed court.".

22 Special provision in case of marriage

In section 15(b) of the Principal Act, omit "of Police".

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23 Insertion of Division 5 in Part 2


"Division 5—Suspension and termination of witness protection and assistance

15A Suspension of protection and assistance

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

The participant may have done something that results in him or her 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 participant.

(2) Suspension of protection and assistance under this section takes effect when the notice is given to the participant and has effect for the period specified by the Chief Commissioner in the notice, but may be lifted earlier by the Chief Commissioner.

(3) To avoid doubt, the participant continues to be a participant during the period of suspension even though the provision of protection and assistance is suspended.".

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24 Cessation of protection and assistance

(1) Insert the following heading to section 16 of the Principal Act—

"Termination of protection and assistance".

(2) In section 16(1) of the Principal Act, omit "of Police".

(3) For section 16(2) of the Principal Act substitute—

"(2) Protection and assistance provided to a person under the Victorian witness protection program may be terminated by the Chief Commissioner if—

(a) any of the grounds for termination specified in subsection (3) exist; and

(b) the Chief Commissioner is of the opinion that, in the circumstances, the protection and assistance should be terminated.

(3) The grounds for termination under subsection (2) are that—

(a) the person commits an offence against the law of Victoria or elsewhere; or

(b) the person deliberately breaches a term of the memorandum of understanding or a requirement or undertaking relating to the program, including an undertaking to give evidence given to this State, the Commonwealth or another State or a Territory; or

(c) the Chief Commissioner discovers that the person has knowingly given information to him or her that is false or misleading in a material particular; or

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(d) the person's conduct or threatened conduct is, in the Chief Commissioner's opinion, likely to threaten the security or compromise the integrity of the program; or

(e) the circumstances that gave rise for the need for protection and assistance for the person cease to exist; or

(f) the person refuses or fails to sign the memorandum of understanding when required to do so under section 5(5); or

(g) there is, in the Chief Commissioner's opinion, no reasonable justification for the person to remain in the program.".

25 Notice of involuntary termination, review and appeal

(1) Insert the following heading to section 17 of the Principal Act—

"Involuntary termination—notice and review".


(3) For sections 17(4) and (5) of the Principal Act substitute—

"(4) If the Chief Commissioner confirms the decision, he or she must inform the person of the reasons for the confirmation.

(5) The Chief Commissioner must complete the review and inform the person under subsection (3)(c) within 14 days after the date of the application.".

(4) Section 17(6) of the Principal Act is repealed.

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26 When does involuntary termination take effect?


(a) in subsection (1), omit "of Police";

(b) for subsection (1)(d) substitute—

"(d) if the person applies for a review of the decision in accordance with section 17(2) and the Chief Commissioner notifies them that the decision has been confirmed—takes effect on the expiration of 3 days after the Chief Commissioner notifies the person of the confirmation of the decision.";

(c) subsections (1)(e) and (2) are repealed.

27 Restoration of former identity


(2) For section 19(5) and (6) of the Principal Act substitute—

"(5) If the Chief Commissioner confirms the decision, he or she must inform the person of the reasons for the confirmation.

(6) The Chief Commissioner must complete the review and inform the person under subsection (4)(c) within 14 days after the date of the application.".

(3) Section 19(7) of the Principal Act is repealed.

28 When does a decision to restore a person's former identity take effect?


(a) in subsection (1), omit "of Police";

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(b) for subsection (1)(d) substitute—

"(d) if the person applies for a review of the decision in accordance with section 19(3) and the Chief Commissioner notifies them that the decision has been confirmed—takes effect on the expiration of 3 days after the Chief Commissioner notifies the person of the confirmation of the decision.";

(c) subsections (1)(e) and (2) are repealed.



"20A Children of participant or recognised participant who have no former identity

(1) This section applies if—

(a) a child of a participant or recognised participant is registered in the register of births under an identity of the participant acquired under this Act or of the recognised participant acquired under a complementary witness protection law; and

(b) protection and assistance to the participant under this Act or to the recognised participant under the complementary witness protection law are terminated; and

(c) there is no entry in the register of births in respect of the child under the original identity of the participant or recognised participant.

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(2) The Supreme Court, on an application under subsection (3), may make an order—

(a) directing that the entry in respect of the child referred to in subsection (1)(a) be cancelled and nominating a member or members of the police force or an officer or officers of the approved authority to cancel the entry; and

(b) authorizing the nominated member or members of the police force or nominated officer or officers of the approved authority to make a new entry in the register of births in respect of the child under the original identity of the participant or recognised participant.

(3) An application for an order under subsection (2) may be made by—

(a) the Chief Commissioner, in the case of a child of a participant; or

(b) an approved authority, in the case of a child of a recognised participant.

(4) On the making of an order under subsection (2)—

(a) the member or members of the police force or officer or officers of the approved authority nominated in the order—

(i) must cancel the entry referred to in subsection (1)(a); and

(ii) may make the entry authorized by the order under subsection (2)(b); and

(b) the Registrar is required to give the member or members of the police force or officer or officers of the approved

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authority nominated in the order access to the register of births and to give any assistance that they may require.

(5) This section applies despite anything to the contrary in section 9(2).".



"PART 3—COMMONWEALTH AND INTERSTATE ARRANGEMENTS".

31 Arrangements with approved authorities

In sections 21, 21A, 22(1) and 23 of the Principal Act, omit "of Police" (wherever occurring).

32 Part 4 inserted


"PART 4—GENERAL

23A Delegation by Chief Commissioner

(1) The Chief Commissioner, by instrument, may delegate a duty, function or power of the Chief Commissioner under a provision of this Act specified in column 1 of the table to a member of the police force of or above the rank specified in column 2 of the table opposite that provision.

Table

Column 1Provision of this Act

Column 2Rank of delegate

Section 3A to the extent that it provides for the taking of action to protect the safety or welfare of a witness or a member of the family of a witness

Deputy Commissioner

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Column 1Provision of this Act

Column 2Rank of delegate

Section 3B Deputy Commissioner

Section 3C Deputy Commissioner

Section 4 Deputy Commissioner


Section 9A Deputy Commissioner

Section 9B Deputy Commissioner

Division 2 of Part 2 Superintendent

Division 3 of Part 2 Superintendent

Section 10(4)(a) Deputy Commissioner


Section 15A Deputy Commissioner


Section 19(1) and (2) Deputy Commissioner




(2) No more than one delegation may be in force at any one time in respect of a duty, function or power of the Chief Commissioner under Division 2 or 3 of Part 2, excluding any delegation to a Deputy Commissioner.

(3) A member of the police force of or above the rank of superintendent may perform or exercise duties, functions or powers delegated to the member by the Chief Commissioner under a complementary witness protection law.

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(4) Section 6A of the Police Regulation Act 1958 does not apply to a duty, function or power of the Chief Commissioner under this Act or a complementary witness protection law.".

33 Freedom of Information Act 1982

(1) In section 24 of the Principal Act—

(a) after paragraph (a)(ii) insert—

"(iia) the fact that an interim protection declaration has been made in relation to a person or the details of an interim protection declaration; or

(iib) the making of an application for, or the granting of, an authority under Division 3 of Part 2 or anything done in accordance with that authority; or";

(b) in paragraphs (a)(iv) and (b), omit "of Police".

(2) At the end of section 24 of the Principal Act insert—

"(2) In this section—

participant includes a person in relation to whom an interim protection declaration has been made;

recognised participant includes a person in relation to whom a declaration or order that corresponds to an interim protection declaration has been made under a complementary witness protection law or who has otherwise received interim or temporary protection under a complementary witness protection law.".

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"25A Regulations

(1) The Governor in Council may make regulations—

(a) for the purpose of implementing arrangements with approved authorities in connection with complementary witness protection laws; and

(b) for or with respect to any other matter or thing that is required or permitted to be prescribed or necessary to be prescribed to give effect to this Act.

(2) Regulations made under this Act—

(a) may be of general or limited application; and

(b) may differ according to differences in time, place or circumstances; and

(c) may apply, adopt or incorporate any matter contained in any document, code, standard, rule, specification or method, formulated, issued, prescribed or published by any person whether—

(i) wholly or partially or as amended by the regulations; or

(ii) formulated, issued, prescribed or published at the time the regulations are made or at any time before then; or

(iii) as formulated, issued, prescribed or published from time to time; and

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(d) may leave anything for the approval or satisfaction of a specified person; and

(e) may provide in a specified case or class of case for the exemption of persons or things or a specified class of persons or things from any of the provisions of the regulations, whether unconditionally or on specified conditions, and either wholly or to such an extent as specified.".



"PART 5—TRANSITIONAL PROVISIONS".

36 New section 28 inserted


"28 Transitional provision—Witness Protection Amendment Act 2014

(1) If a memorandum of understanding entered into under section 5 before the commencement day that is in force on that day does not include any obligations referred to in section 5(2)(fa) as inserted by section 11(b) of the amending Act—

(a) the Chief Commissioner may give written notice to the witness of any such obligations; and

(b) if so, the memorandum of understanding is taken to include those obligations on and after the time of notification.

(2) An appeal that had been instituted under section 17(5) or 19(6) before the commencement day but not determined before that day may be determined on and

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after that day as if this Act had not been enacted and section 18 or 20 (as the case requires) as in force immediately before the commencement day, continues to apply in respect of that appeal.


amending Act means the Witness Protection Amendment Act 2014;

commencement day means the day after the day on which the amending Act receives the Royal Assent.".

37 Amendments consequential on Victoria Police Act 2013

In the Principal Act—

(a) in section 3(1), in the definition of Chief Commissioner, for "Police Regulation Act 1958" substitute "Victoria Police Act 2013";

(b) in section 9(4) and (5), for "member or members of the police force" substitute "police officer or police officers";

(c) in sections 9A(2)(b), 9G(1), 9H(3) and 10(2), for "member of the police force" substitute "police officer";

(d) in section 20A(2) and (4), for "member or members of the police force" (wherever occurring) substitute "police officer or police officers";

(e) in section 23A(1), for "member of the police force" substitute "police officer";

(f) in section 23A(3)—

(i) for "member of the police force" substitute "police officer";

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(ii) for "to the member" substitute "to the police officer";

(g) in section 23A(4), for "Section 6A of the Police Regulation Act 1958" substitute "Section 19 of the Victoria Police Act 2013".

38 Repeal of amending Act

This Act is repealed on the first anniversary of the first day on which all of its provisions are in operation.

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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ENDNOTES

Endnotes

Witness Protection Amendment Act 2014No. 43 of 2014

39

† Minister's second reading speech—

Legislative Assembly: 12 March 2014

Legislative Council: 3 April 2014

The long title for the Bill for this Act was "A Bill for an Act to amend the Witness Protection Act 1991 to improve the operation of the Victorian witness protection program and for other purposes."

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