WITNESS PROTECTION ACT 1994 No. 124 of 1994 - Assented to 18 October 1994
WITNESS PROTECTION ACT 1994 No. 124 of 1994 - TABLE OF PROVISIONS
TABLE OF PROVISIONS Section 1. Short title 2. Commencement 3. Interpretation 4. Establishment of the National Witness Protection Program 5. Inclusion in NWPP not to be done as a reward for giving evidence etc. 6. Arrangements with approved authorities 7. Witness to disclose certain matters before being included in the NWPP 8. Selection for inclusion in the NWPP 9. Memorandum of understanding 10. Inclusion of foreign nationals or residents in NWPP at the request of foreign law enforcement agencies 11. Register of participants 12. Access to Register 13. Action where a witness is included in the NWPP 14. Special provision in case of marriage of participant 15. Dealing with rights and obligations of participant 16. Non-disclosure of former identity of participant 17. Special commercial arrangements by Commissioner 18. Cessation of protection and assistance 19. Restoration of former identity 20. Provision of information to approved authorities 21. Officers protected from suit in respect of decisions under Act 22. Offences 23. Payments under NWPP not able to be confiscated 24. Restriction on issue of Commonwealth identity documents 25. Delegation 26. Commissioner and members not to be required to disclose information 27. Requirement where participant becomes a witness in criminal proceedings 28. Identity of participant not to be disclosed in court proceedings etc. 29. Transitional 30. Reports and information for the Minister 31. Amendments of other Acts 32. Regulations SCHEDULE AMENDMENTS OF OTHER ACTS WITNESS PROTECTION ACT 1994 No. 124 of 1994 - LONG TITLE
An Act to establish a program to give protection and assistance to certain witnesses and other persons WITNESS PROTECTION ACT 1994 No. 124 of 1994 - SECT 1 Short title
1. This Act may be cited as the Witness Protection Act 1994. (Minister's second reading speech made in- Senate on 23 March 1994 House of Representatives on 10 October 1994) WITNESS PROTECTION ACT 1994 No. 124 of 1994 - SECT 2 Commencement
2.(1) This Act commences on a day to be fixed by Proclamation. (2) If this Act does not commence under subsection (1) within the period of 6 months beginning on the day on which it receives the Royal Assent, it commences on the first day after the end of that period. WITNESS PROTECTION ACT 1994 No. 124 of 1994 - SECT 3 Interpretation
3. In this Act, unless the contrary intention appears: "approved authority" means: (a) a Commissioner (however designated) of the police force of a State or Territory; or (b) the Chairman of the National Crime Authority; or (c) an authority or body of the Commonwealth or of a State or Territory that: (i) is authorised to conduct inquiries or investigations in relation to conduct that constitutes, or is alleged to constitute, criminal conduct, misconduct or corruption; and (ii) is declared by the Minister by notice in the Gazette to be an approved authority for the purposes of this Act; "Commissioner" means the Commissioner of the Australian Federal Police; "Commonwealth identity document" means a passport, a tax file number within the meaning of section 202A of the Income Tax Assessment Act 1936 or another document prescribed for the purposes of this definition;
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"Commonwealth officer" has the same meaning as in section 3 of the Crimes Act 1914; "Commonwealth participant" means a person who is a participant: (a) in relation to an offence against a law of the Commonwealth; or (b) in relation to a Royal Commission under the Royal Commissions Act 1902 or another commission or inquiry under a law of the Commonwealth; or (c) in relation to an inquiry instituted by a House of the Parliament; or (d) under section 10; "complementary witness protection law" means a law of a State or Territory that: (a) makes provision for the protection of witnesses; and (b) is declared by the Minister by notice published in the Gazette to be a complementary witness protection law; "Deputy Commissioner" means a Deputy Commissioner of the Australian Federal Police; "designated position" means a position of a member or staff member: (a) the duties of which relate to the NWPP and: (i) require the occupant to have a national security clearance because those duties involve access to national security information classified as "secret" or "top secret"; or (ii) require the occupant to have a position of trust clearance at the level of "highly protected" because those duties involve access to sensitive information; and (b) that has been declared in writing by the Commissioner to be a designated position for the purposes of this Act; "member" means a member or special member of the Australian Federal Police; "national security clearance" means a clearance that enables a person to have access to national security information or to an area that has been designated as secure; "national security information" means information affecting the defence, security or international relations of Australia; "NWPP" means the National Witness Protection Program established by this Act; "participant" means a person who is included in the NWPP; "position of trust clearance" means a clearance that enables a person to have access to sensitive material or to resources of a valuable or attractive nature; "Registrar" means a person who occupies the position of Registrar of births, deaths and marriages, however described, of a State or Territory; "sensitive information" includes material and resources (other than national security information) the unauthorised disclosure, loss, compromise, misuse or damage of which could reasonably be expected to: (a) cause serious harm to a person, a government or the legitimate activities of an agency; or (b) be seriously prejudicial to the establishment and maintenance of lawful methods for the protection of public safety; "staff member" means a staff member of the Australian Federal Police; "witness" means: (a) a person who has given, or who has agreed to give, evidence on behalf of the Crown in right of the Commonwealth or of a State or Territory in: (i) proceedings for an offence; or (ii) hearings or proceedings before an authority that is declared by the Minister by notice in the Gazette to be an authority to which this paragraph applies; or (b) a person who has given, or who has agreed to give, evidence otherwise than as mentioned in paragraph (a) in relation to the commission or possible commission of an offence against a law of the Commonwealth or of a State or Territory; or (c) a person who has made a statement to the Australian Federal Police or an approved authority in relation to an offence against a law of the Commonwealth or of a State or Territory; or (d) a person who, for any other reason, may require protection or other assistance under the NWPP; or (e) a person who, because of his or her relationship to, or association with, such a person may require protection or other assistance under the NWPP. WITNESS PROTECTION ACT 1994 No. 124 of 1994 - SECT 4 Establishment of the National Witness Protection Program
4.(1) The Commissioner is to maintain a program, to be known as the National Witness Protection Program, under which the Commissioner, and members and staff members who hold or occupy designated positions, arrange or provide protection and other assistance for witnesses. (2) That protection and assistance may include things done as a result of powers and functions conferred on the Commissioner under a complementary witness protection law. WITNESS PROTECTION ACT 1994 No. 124 of 1994 - SECT 5 Inclusion in NWPP not to be done as a reward for giving evidence etc.
5. The inclusion of a witness in the NWPP is not to be done as a reward or as a means of persuading or encouraging the witness to give evidence or to make a statement.
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WITNESS PROTECTION ACT 1994 No. 124 of 1994 - SECT 6 Arrangements with approved authorities
6.(1) The Commissioner may make arrangements with an approved authority about any matter in connection with the administration of a complementary witness protection law. (2) Without limiting the coverage of those arrangements, those arrangements: (a) may provide for the Commissioner or a member to perform functions or exercise powers conferred by a complementary witness protection law; and (b) must include procedures under which the authority shares with the Commonwealth the costs incurred in providing those services; and (c) may provide for the authority to make available to the Commissioner such statements, transcripts of evidence and other documents as will assist the Commissioner in deciding: (i) whether to include a witness in the NWPP; and (ii) what protection and assistance is appropriate for a participant; and (d) may confer powers and functions under complementary witness protection laws on the Commissioner. (3) The functions of the Commissioner under this Act do not include the provision of services under such an arrangement in relation to a law of a State or Territory unless the provision of those services is authorised to the extent necessary by the State or Territory concerned. WITNESS PROTECTION ACT 1994 No. 124 of 1994 - SECT 7 Witness to disclose certain matters before being included in the NWPP
7.(1) The Commissioner is not to include a witness in the NWPP unless the Commissioner is satisfied that the witness has provided the Commissioner with all information necessary for the Commissioner to decide whether the witness should be included. (2) Without limiting the generality of subsection (1), a witness must: (a) disclose to the Commissioner details of all outstanding legal obligations of the witness; and (b) disclose to the Commissioner details of any outstanding debts of the witness, including amounts outstanding for any tax, including a tax under a law of a State or Territory; and (c) disclose to the Commissioner details of the witness's criminal history; and (d) disclose to the Commissioner details of any civil proceedings that have been instituted by or against the witness; and (e) disclose to the Commissioner details of any bankruptcy proceedings that have been instituted against the witness; and (f) inform the Commissioner whether the witness is an undischarged bankrupt under the Bankruptcy Act 1966 and, if the witness is, give to the Commissioner copies of all documents relating to the bankruptcy; and (g) inform the Commissioner whether the witness has entered into or intends to enter into a composition with creditors, a deed of arrangement or a deed of assignment under Part X of the Bankruptcy Act 1966 and, if the witness has done or intends to do such a thing, give to the Commissioner copies of all documents relating to that thing; and (h) inform the Commissioner whether there are any restrictions on the witness's holding positions in companies, whether public or private and, if there are, give to the Commissioner copies of all documents relating to those restrictions; and (i) disclose to the Commissioner details of the witness's immigration status; and (j) disclose to the Commissioner details of financial liabilities and assets (whether real or personal) of the witness in relation to which: (i) a record is kept under a law of a State or Territory; or (ii) the witness has entered into a contractual arrangement; and (k) disclose to the Commissioner details of any cash held by the witness, whether in accounts or otherwise; and (l) disclose to the Commissioner details of any reparation order that is in force against the witness; and (m) inform the 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 (n) inform the Commissioner of the witness's general medical condition; and (o) disclose to the Commissioner details of any relevant court orders or arrangements relating to custody or access to children; and (p) disclose to the Commissioner details of any business dealings in which the witness is involved; and (q) disclose to the Commissioner details of court orders relating to sentences imposed on the witness to which the witness is subject in relation to criminal prosecutions; and (r) disclose to the Commissioner details of any parole or licence to which the witness is subject; and (s) give to the Commissioner copies of any documents relating to any such
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orders, parole or licence; and (t) disclose to the Commissioner details of any arrangements that the witness has made for: (i) the service of documents on the witness; or (ii) representation in proceedings in a court; or (iii) enforcement of judgments in the witness's favour; or (iv) compliance with the enforcement of judgments against the witness. (3) The Commissioner may also: (a) require the witness to undergo: (i) medical tests or examinations; or (ii) psychological or psychiatric examinations; and to make the results available to the Commissioner; or (b) make such other inquiries and investigations as the Commissioner considers necessary; for the purposes of assessing whether the witness should be included in the NWPP. WITNESS PROTECTION ACT 1994 No. 124 of 1994 - SECT 8 Selection for inclusion in the NWPP
8.(1) The Commissioner has the sole responsibility of deciding whether to include a witness in the NWPP, including cases where an approved authority has requested that a witness be included in the NWPP. (2) A witness may be included in the NWPP only if: (a) the Commissioner has decided that the witness be included; and (b) the witness agrees to be included; and (c) the witness signs a memorandum of understanding in accordance with section 9 or: (i) if the witness is under 18 years-a parent or guardian of the witness signs such a memorandum; or (ii) if the witness otherwise lacks legal capacity to sign the memorandum-a guardian or other person who is usually responsible for the care and control of the witness signs such a memorandum. (3) The Commissioner must, in deciding whether to include a witness in the NWPP, 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 NWPP; 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 NWPP-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 (g) the nature of the witness's relationship to other witnesses being assessed for inclusion in the NWPP; and may have regard to such other matters as the Commissioner considers relevant. (4) The Commissioner must not include a witness in the NWPP if the 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. (5) If: (a) a parent or guardian of a witness signs a memorandum of understanding because the witness was under 18 years; and (b) the witness is included in the NWPP and remains a participant until after he or she turns 18; the Commissioner may require the participant to sign another memorandum of understanding. WITNESS PROTECTION ACT 1994 No. 124 of 1994 - SECT 9 Memorandum of understanding
9.(1) A memorandum of understanding is to: (a) set out the basis on which a participant is included in the NWPP and details of the protection and assistance that is to be provided; and (b) contain a provision to the effect that protection and assistance under the NWPP may be terminated if the participant breaches a term of the memorandum of understanding. (2) A memorandum of understanding in relation to a participant may also contain: (a) the terms and conditions on which protection and assistance is to be provided to the participant, which may include a condition that protection and assistance may be withdrawn if the participant: (i) commits an offence against a law of the Commonwealth or of a
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State or Territory; or (ii) engages in activities of a kind specified in the memorandum of understanding; or (iii) compromises the integrity of the NWPP; and (b) an agreement by or on behalf of the participant not to compromise, directly or indirectly, the security of, or any other aspect of, the protection or assistance being provided; and (c) an agreement by or on behalf of the participant that the participant comply with all reasonable directions of the Commissioner in relation to the protection and assistance provided to the participant; and (d) an agreement by or on behalf of the participant that the participant will, if required to do so by the Commissioner: (i) undergo medical, psychological or psychiatric tests or examinations and make the results available to the Commissioner; or (ii) undergo drug or alcohol counselling or treatment; and (e) a list of: (i) the outstanding legal obligations (including family maintenance obligations and taxation obligations) of the participant; and (ii) any other obligations of the participant; and an agreement by or on behalf of the participant as to how those obligations are to be met; and (f) a financial support arrangement; and (g) an agreement by or on behalf of the participant that the participant will disclose to the Commissioner details of any criminal charges that are made against, and any civil or bankruptcy proceedings that are made in relation to, the participant after the participant is included in the NWPP. (3) A memorandum of understanding must be signed by or on behalf of the witness in the presence of a member or a staff member who holds or occupies a designated position. (4) A witness becomes included in the NWPP when the Commissioner signs the memorandum of understanding. (5) The Commissioner must, as soon as practicable after signing a memorandum of understanding, notify the relevant participant that it has been signed. (6) Subject to subsection (7), the Commissioner may, by notice in writing given to a participant, vary the memorandum of understanding, and a variation takes effect on the day on which the notice is received by the participant. (7) A variation must not have the effect of removing from the memorandum of understanding the provisions referred to in subsection (1). WITNESS PROTECTION ACT 1994 No. 124 of 1994 - SECT 10 Inclusion of foreign nationals or residents in NWPP at the request of foreign law enforcement agencies
10.(1) If: (a) the Minister receives a request from an appropriate authority of a foreign country (the "agency") for the inclusion of a person (the "nominated person") who is a citizen or a resident of that country in the NWPP; and (b) the Minister is satisfied that: (i) the agency has provided all material that is necessary to support the request; and (ii) it is appropriate to do so in all the circumstances; the Minister is to refer the request to the Commissioner. (2) The Commissioner is to consider including the nominated person in the NWPP in the same way as the Commissioner would consider including another person in the NWPP. (3) The Commissioner may, if he or she thinks it appropriate to do so, seek further information about the nominated person from the agency. (4) If: (a) the Commissioner decides that the nominated person is suitable for inclusion in the NWPP; and (b) the Minister, after considering a report from the Commissioner recommending the inclusion of the person in the NWPP, has decided that it is appropriate in all the circumstances that the person be included in the NWPP; and (c) the Commissioner has entered into an arrangement with the agency for the purpose of making services under the NWPP available to the agency; and (d) the nominated person has been granted a visa for entry to Australia; the Commissioner is to include the nominated person in the NWPP. (5) An arrangement referred to in paragraph (4)(c) must include procedures under which the agency pays the costs associated with providing protection for the nominated person and any associated persons, including: (a) the costs of travel by those persons and the costs of associated travel by members; and
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(b) any costs that will be incurred if protection and assistance under the NWPP to the nominated person is terminated; and (c) such other costs as the Commissioner determines. WITNESS PROTECTION ACT 1994 No. 124 of 1994 - SECT 11 Register of participants
11.(1) The Commissioner is to maintain a Register of participants. (2) The Register may be maintained by electronic means. (3) The Commissioner is to include the following details in the Register in respect of each participant: (a) the participant's name; (b) if the participant has been provided with a new identity under the NWPP-the participant's new name; (c) the participant's address; (d) details of any offences of which the participant has been convicted; (e) the date on which the person ceases to be a participant.