2002
2002
2003-07-22
act
publicspecial
act.reprint
allinforce
2002-06-26
2003-07-22
act-2003-040
none
act-2002-054
f8f47de8-8491-4664-8ba3-f6ad78aa03d0
181d73ab-bbc0-4cd8-8745-9be3fbe1ed43
Note—
The Act was repealed by the Statute Law (Miscellaneous Provisions) Act 2003
No 40, Sch 3 with effect from 22.7.2003.
An Act to amend the Witness Protection Act 1995 to make
further provision for the services to be provided to protected witnesses, the
obligations of protected witnesses, the role of the Ombudsman, offences under
the Act and measures for the protection of witnesses; and for other
purposes.
1Name of
Act
This Act is the Witness
Protection Amendment Act 2002.
2Commencement
This Act commences on a day or days to be
appointed by proclamation.
3Amendment of Witness Protection Act 1995 No
87
The Witness
Protection Act 1995 is amended as set out in Schedule
1.
Schedule 1Amendments
(Section 3)
[1]Section 3
Definitions
Insert in alphabetical order:
designated authority for a
complementary witness protection law means the approved authority exercising
functions under that law that is declared by the Minister by order published
in the Gazette to be the designated authority for that
law.
[2]Section 5 Witness protection
program
Insert after section 5 (2) (e):
(e1)
providing to the witness services in the nature
of counselling (such as psychological counselling and drug and alcohol
counselling) and vocational training services,
[3]Section 5 (2)
(f)
Omit the paragraph.
[4]Section 6 Inclusion in the
witness protection program
Omit “72 hours” from section 6 (4).
Insert instead “7 days”.
[5]Section 8 Memorandum of
understanding
Omit section 8 (1) (b). Insert instead:
(b)
contain a provision to the effect that protection
and assistance under the program may be terminated if the participant
deliberately breaches a term of the memorandum of understanding or a
requirement or undertaking relating to the witness protection
program.
[6]Section 8 (2)
(c1)
Insert after section 8 (2) (c):
(c1)
the taking, provision and retention of
photographs of the participant,
[7]Section
11A
Insert after section 11:
11ASuspension of protection and
assistance
Protection and assistance provided under the
witness protection program to a participant may be suspended by the
Commissioner of Police for a reasonable period determined by the Commissioner
if the Commissioner is satisfied that the participant has done or intends to
do something that limits the ability of the Commissioner to provide adequate
protection to the person.
Note—
For example, 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 Commissioner not to go there because of
the risk of harm to the participant.
[8]Section 12 Notice of
involuntary termination or suspension and application for
review
Omit “under section 11 (2)” from
section 12 (1).
Insert instead “under section 11 (2) or
11A”.
[9]Section 12
(1)
Insert “or suspended” after
“terminated”.
[10]Section 12
(2)
Omit “28 days”.
Insert instead “14 days (in the case of
termination) or 2 days (in the case of
suspension)”.
[11]Section 12 (4) and
(5)
Insert “or suspend” after
“terminate” wherever occurring.
[12]Section 12
(5)
Omit “72 hours”. Insert instead
“7 days”.
[13]Section 13 Date on which
involuntary termination or suspension takes effect
Omit “under section 11 (2)” from
section 13 (1).
Insert instead “under section 11 (2) or
11A”.
[14]Section 13
(1)
Insert “or suspended” after
“terminated”.
[15]Section 13 (1) (a) and
(b)
Omit “period of 28 days” wherever
occurring.
Insert instead “appropriate review
period”.
[16]Section 13
(2)
Insert “or suspended” after
“terminated”.
[17]Section 13 (3) and
(4)
Insert after section 13 (2):
(3)
If the Ombudsman has been unable to notify the
participant of the decision despite taking reasonable steps to do so, the
decision of the Ombudsman takes effect when the Ombudsman notifies the
Commissioner of Police that the Ombudsman has been unable to notify the
participant of the decision.
(4)
In this section:
appropriate review period
means:
(a)
if the decision is to terminate protection and
assistance—14 days, or
(b)
if the decision is to suspend protection and
assistance—2 days.
[18]Section 15 Application for
court order
Omit “The Commissioner of Police may
apply” from section 15 (1).
Insert instead “Application may be
made”.
[19]Section 15 (1)
(a1)
Insert after section 15 (1) (a):
(a1)
to make a new entry in the register of deaths in
respect of a witness or a relative (by blood or marriage) of a witness,
or
[20]Section 15
(1A)
Insert after section 15 (1):
(1A)
Such an application may only be made by:
(a)
the Commissioner of Police,
or
(b)
the designated authority for a complementary
witness protection law.
[21]Section 15
(2)
Omit “Commissioner of Police”. Insert
instead “applicant”.
[22]Section 17 Power of Supreme
Court to make order
Insert “or (in the case of an order applied
for by the designated authority for a complementary witness protection law)
under that law” after “this Act” in section 17 (a)
(ii).
[23]Section 17
(c)
Omit the paragraph. Insert instead:
(c)
a memorandum of understanding has been entered
into between the witness and the Commissioner of Police in accordance with
section 8 or (in the case of an order applied for by the designated authority
for a complementary witness protection law) between the witness and that
designated authority in accordance with the corresponding provision of that
law, and
[24]Section 18 Effect of witness
protection order
Insert “or (a1)” after “section
15 (1) (a)”.
[25]Section 18
(a)
Omit the paragraph. Insert instead:
(a)
a person authorised to do so by the order may
make any entries in a register of births, deaths or marriages that are
necessary to give effect to the order, and
[26]Section 18
(c)
Omit the paragraph. Insert instead:
(c)
the Commissioner of Police or (in the case of an
order applied for by the designated authority for a complementary witness
protection law) that designated authority must maintain records showing
details of the original birth, death or marriage of each person in respect of
whom an entry is made under paragraph (a).
[27]Section 19 Effect of entries
made under this Act
Omit “the register of births or the
register of marriages” from section 19 (1).
Insert instead “a register of births,
deaths or marriages”.
[28]Section 19
(2)
Omit the subsection. Insert instead:
(2)
An entry made under this Act in a register of
births, deaths or marriages can only be cancelled by the Registrar of Births,
Deaths and Marriages if the Supreme Court, after being satisfied that the
witness is no longer included in the relevant witness protection program, has
made a court order on the application of the Commissioner of Police or the
designated authority for a complementary witness protection law directing that
the entry be cancelled.
[29]Section 23 Information not to
be disclosed
Omit “the register of births or the
register of marriages” from section 23 (1).
Insert instead “a register of births,
deaths or marriages”.
[30]Section 23 (1)
(a)
Insert “or a complementary witness
protection law” after “this Act”.
[31]Section 25 Requirement where
participant becomes witness in criminal proceedings
Omit the section.
[32]Section 26 Identity of
participant not to be disclosed in legal proceedings
Insert after section 26 (2):
(3)
This section does not limit the operation of Part
3A (Proceedings involving persons with new identity).
[33]Part 3A
Insert after section 31:
Part 3AProceedings involving persons
with new identity
31ADefinitions
In this Part:
court includes tribunal, Royal
Commission or other commission of inquiry and the person or body holding or
conducting a relevant proceeding.
protected
identity of a protected person means:
(a)
in the context of relevant proceedings in which
the protected person is or may be required to give evidence under the
person’s new identity—the person’s previous identity,
or
(b)
in the context of relevant proceedings in which
the protected person is or may be required to give evidence under the
person’s previous identity—the person’s new
identity.
protected
person means a person who, having been provided with a new
identity under the witness protection program, retains that identity whether
or not he or she remains a participant.
relevant
proceeding means each of the following:
(a)
a proceeding before a court,
(b)
an inquest or inquiry under the Coroners Act 1980,
(c)
a hearing under the New
South Wales Crime Commission Act 1985,
(d)
a hearing under the Police
Integrity Commission Act 1996.
31BRequirement if person given
new identity becomes a witness in relevant proceeding
(1)
If a protected person is or may be required to
give evidence in a relevant proceeding before a court, whether under the
person’s new identity or previous identity, the person must notify the
Commissioner of Police that the person is or may be required to give evidence
in the proceeding.
Maximum penalty: 50 penalty
units.
(2)
The Commissioner of Police must give the court
concerned a certificate (a non-disclosure certificate) relating
to the protected person.
(3)
If the court considers it appropriate in the
relevant proceeding, the court may disclose to each party to the
proceeding:
(a)
that the court has been given a non-disclosure
certificate relating to a person who may be required to give evidence in the
proceeding, and
(b)
what the certificate
states.
(4)
The court may only disclose what the
non-disclosure certificate states in the absence of any jury empanelled for
the proceeding and the public. When disclosing the certificate’s
existence, the court must inform the parties of the effect of the
certificate.
31CWhat non-disclosure
certificate must state
(1)
The non-disclosure certificate must state:
(a)
that the person is, or has been, included in the
witness protection program, and
(b)
that the person has been given a new identity
under this Act, and
(c)
that the person has not been convicted of any
offence other than an offence stated in the
certificate.
(2)
The certificate must not include any information
that may enable the protected identity of the person to be
revealed.
31DEffect of non-disclosure
certificate
(1)
On the giving of a non-disclosure certificate in
respect of a protected person:
(a)
a question may not be asked in the relevant
proceeding that may lead to the disclosure of the protected identity of the
protected person or where the protected person lives, and
(b)
a witness in the relevant proceeding, including
the protected person, cannot be required to answer a question, give any
evidence, or provide any information, that may lead to the disclosure of the
protected identity of the protected person or where the protected person
lives, and
(c)
a person involved in the relevant proceeding must
not in the relevant proceeding make a statement that discloses or could
disclose the protected identity of the protected person or where the protected
person lives.
(2)
This section applies despite any other Act but
subject to section 31E.
31ECourt may grant leave to
disclose relevant information
(1)
The court may, on application made to it, give
leave to a party to ask questions of a witness, including the protected
person, or make a statement that, if answered or made, may disclose the
protected person’s protected identity or where the protected person
lives.
(2)
The only parties to whom such leave may be given
are as follows:
(a)
for a criminal proceeding—the prosecutor
and each accused person to whom the relevant proceeding relates or the
person’s legal representative,
(b)
for a civil proceeding—each party to the
relevant proceeding or the party’s legal
representative,
(c)
for another proceeding—each person who has
been given leave to appear in the relevant proceeding or the person’s
legal representative,
(d)
in any proceedings—a legal practitioner
assisting the court.
(3)
The court may direct that the application be
heard in the absence of any jury empanelled for the proceeding and the
public.
(4)
The court must not give leave to a party under
this section unless satisfied:
(a)
there is some evidence that, if believed, would
call into question the credibility of the protected person,
and
(b)
it is in the interests of justice for the party
to be able to test the credibility of the protected person,
and
(c)
it would be impractical to test properly the
credibility of the protected person without knowing the protected identity of
the person.
(5)
If the court gives leave, a person may, in
accordance with the leave:
(a)
ask a question that may lead to the disclosure of
the protected identity of the protected person or where the protected person
lives, or
(b)
answer a question, give evidence, or provide
information that may lead to the disclosure of the protected identity of the
protected person or where the protected person lives, or
(c)
make a statement that discloses or could disclose
the protected identity of the protected person or where the protected person
lives.
(6)
If the court gives leave, the court:
(a)
must hold the relevant part of the proceeding in
the absence of the public, and
(b)
must make an order for the suppression of
publication of evidence given before it that it considers will ensure that the
protected identity of the protected person and where the protected person
lives is not disclosed, and
(c)
may make any other order the court considers
appropriate.
(7)
A person must not contravene an order made under
subsection (6).
Maximum penalty: 50 penalty units or imprisonment
for 12 months, or both.
(8)
This section does not does not limit the
court’s power to punish for contempt.
[34]Section 32
Offence—disclosures concerning participants
Insert “or in accordance with an order of
the Supreme Court under section 34,” before “disclose
information”.
[35]Section 33
Offence—disclosure by participants and others
Omit “participant or a former
participant” from section 33 (1).
Insert instead “person who is or was a
participant or a witness considered for inclusion in the witness protection
program”.
[36]Section 33
(3)
Insert after section 33 (2):
(3)
A person is a witness
considered for inclusion in the witness protection program
if:
(a)
the person is a witness who is the subject of
consideration under section 6 for inclusion in the witness protection program
(even if the Commissioner subsequently decides not to include the witness),
or
(b)
the person is a witness included in the witness
protection program temporarily under section 10 (even if the witness does not
go on to be included in the witness protection
program).
[37]Section 34 Certain persons not
to be required to disclose information
Insert at the end of section 34 (1) (h):
, or
(i)
a person or body (or an employee of a person or
body) providing services to or for a participant at the request of the
Commissioner of Police.
[38]Section 34
(2)
Omit “the performance of his or her duties
in accordance with this Act”.
Insert instead “the exercise of functions
under this Act or the protection of witnesses included in the witness
protection program”.
[39]Section 40 Immunity from legal
proceedings for exercise of functions under Act
Omit “by this Act”.
Insert instead “by or under this Act
(including an order of the Supreme Court under this
Act)”.
[40]Schedule 1 Savings,
transitional and other provisions
Omit “this Act” from clause 1 (1).
Insert instead:
the following Acts:
this Act
Witness
Protection Amendment Act 2002
[41]Schedule 1, clause 1
(2)
Omit “this Act”. Insert instead
“the Act concerned”.
[42]Schedule
1
Insert at the end of the Schedule:
Part 3Provisions consequent on
Witness Protection Amendment Act
2002
5Definition
In this Schedule:
2002
amending Act means the Witness
Protection Amendment Act 2002.
6Appeals
(1)
An amendment made by the 2002 amending Act to
section 6 (4) or 12 (5) does not apply in respect of an appeal received before
the commencement of the amendment.
(2)
An amendment made by the 2002 amending Act to
section 12 (2) does not apply in respect of a notification received before the
commencement of the amendment.
(3)
An amendment made by the 2002 amending Act to
section 13 does not apply in respect of a decision made before the
commencement of the amendment.
7Memorandum of
understanding
The amendment made by the 2002 amending Act to
section 8 (1) does not apply to a memorandum of understanding signed before
the commencement of the amendment.
8Suspension of protection and
assistance
Section 11A extends to apply in respect of a
witness who became a participant before the commencement of that
section.
9Non-disclosure
certificates
Part 3A extends to persons who became protected
persons within the meaning of that Part before the commencement of that Part
and also extends to apply in respect of the giving of evidence after the
commencement of that Part in proceedings that commenced before the
commencement of that Part.
10Information
disclosure
An amendment made by the 2002 amending Act to
section 34 extends to apply in respect of the provision of services before the
commencement of the amendment.
Historical
notes
Table of amending
instruments
Witness
Protection Amendment Act 2002 No 54. Second reading speech
made: Legislative Council, 6.6.2002; Legislative Assembly, 26.6.2002. Assented
to 4.7.2002. Date of commencement, 19.8.2002, sec 2 and GG No 130 of
16.8.2002, p 5932.