Witness (Identity Protection) Act 2006

Witness (Identity Protection) Act 2006

This Act may be cited as the Witness (Identity Protection) Act 2006.

This Act commences on a day to be proclaimed.

In this Act, unless the contrary intention appears – assumed name, of an operative, see section 7(1)(a)(i);Australian Crime Commission means the Australian Crime Commission established by the Australian Crime Commission Act 2002 of the Commonwealth; chief officer means the person for the time being holding office as – in relation to the Police Service, the Commissioner of Police; or in relation to the Australian Crime Commission, the Chief Executive Officer of the Australian Crime Commission; conduct includes any act or omission; corresponding law means a law of another jurisdiction that corresponds to this Act, and includes a law of another jurisdiction that is declared by the regulations to correspond to this Act; corresponding non-disclosure certificate means a certificate given under a provision of a corresponding law that corresponds to section 18(2); corresponding witness identity protection certificate means a certificate given under a provision of a corresponding law that corresponds to section 6; court includes any tribunal or person authorised by law or consent of parties to receive evidence; court name, for an operative in relation to a proceeding, means a name (other than the operative's real name) or code used to identify the operative in the proceeding; criminal activity means conduct that involves the commission of an offence by one or more persons; investigation means an investigation in relation to criminal activity, including an investigation extending beyond this jurisdiction; jurisdiction means the Commonwealth or a State or Territory of the Commonwealth; law enforcement agency means – the Police Service; or the Australian Crime Commission; lawyer means an Australian legal practitioner; non-disclosure certificate means a certificate given under section 18(2); operative means a person who is or was – authorised to acquire and use an assumed identity under the Police Powers (Assumed Identities) Act 2006; or a participant in a controlled operation under the Police Powers (Controlled Operations) Act 2006; party, to a proceeding, means – for a criminal proceeding, the prosecutor and each accused person; or for a civil proceeding, each person who is a party to the proceeding; or for any other proceeding, each person who may appear or give evidence in the proceeding; proceeding means any criminal, civil or other proceeding or inquiry, reference or examination in which by law or consent of parties evidence is or may be given, and includes an arbitration; this jurisdiction means Tasmania; witness identity protection certificate means a certificate given under section 6.

For the purposes of this Act – anything permitted to be done by a party to a proceeding may be done by the party's lawyer; and any requirement to give something to a party to a proceeding is satisfied by giving the thing to, or notifying, the party's lawyer.

A person is "reckless" in relation to a circumstance if – the person is aware of a substantial risk that the circumstance exists or will exist; and having regard to the circumstances known to the person, it is unjustifiable to take the risk.

A person is "reckless" in relation to a result if – the person is aware of a substantial risk that the result will happen; and having regard to the circumstances known to the person, it is unjustifiable to take the risk.

It is a question of fact as to whether taking a risk is unjustifiable.

This Part applies to a proceeding in which an operative is, or may be, required to give evidence obtained as an operative.

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

The chief officer of a law enforcement agency may give a certificate for an operative of the agency in relation to a proceeding if – the operative is, or may be required, to give evidence in the proceeding; and the chief officer is satisfied on reasonable grounds that the disclosure in the proceeding of the operative's identity or where the operative lives is likely to – endanger the safety of the operative or someone else; or prejudice any investigation.

The chief officer must make all reasonable enquiries to enable him or her to ascertain the information required to be included in the certificate by section 7.

A decision to give a witness identity protection certificate – is final; and cannot be impeached for informality or form; and cannot be appealed against, reviewed, called into question, quashed or invalidated in any court.

Subsection (3) does not prevent a decision to give a witness identity protection certificate being called into question in the course of any proceedings of a disciplinary nature against the person who made the decision.

A witness identity protection certificate for an operative of a law enforcement agency in relation to a proceeding must state the following:if the operative – is known to a party to the proceeding or a party's lawyer by a name other than the operative's real name, that name (the "assumed name"); or is not known to any party to the proceeding or any party's lawyer by a name, the operative's court name for the proceeding; the period during which the operative was involved in the investigation to which the proceeding relates; the name of the agency; the date of the certificate; the grounds for giving the certificate; whether the operative has been convicted or found guilty of an offence, in this jurisdiction or elsewhere, and, if so, particulars of each offence; whether any charges against the operative for an offence are outstanding, in this jurisdiction or elsewhere, and, if so, particulars of each charge; if the operative is or was a law enforcement officer – whether the operative has been found guilty of professional misconduct and, if so, particulars of each finding; and whether any allegations of professional misconduct against the operative are outstanding and, if so, particulars of each allegation; whether, to the knowledge of the person giving the certificate, a court has made any adverse comment about the operative's credibility and, if so, particulars of the comment; whether, to the knowledge of the person giving the certificate, the operative has made a false representation when the truth was required and, if so, particulars of the representation; if there is anything else known to the person giving the certificate that may be relevant to the operative's credibility, particulars of the thing.

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

For the purposes of this section – a charge against a person for an offence is "outstanding" until the charge is finally dealt with in any of the following ways:the charge is withdrawn; the charge is dismissed by a court; the person is discharged by a court; the person is acquitted or found guilty of the offence by a court; and an allegation of professional misconduct against a person is "outstanding" if the allegation has not been finally dealt with in accordance with the Police Service Act 2003 or the Australian Crime Commission Act 2002 of the Commonwealth.

The Annulled Convictions Act 2003 does not apply to the disclosure of information under subsection (1)(f) or (g).

In this section – false representation does not include a representation made under an authority under – the Police Powers (Assumed Identities) Act 2006; or the Police Powers (Controlled Operations) Act 2006; professional misconduct means misconduct or a breach of discipline under – the Police Service Act 2003 or the Australian Crime Commission Act 2002 of the Commonwealth; or a law of another jurisdiction that corresponds to the Police Service Act 2003; or a law of a foreign country that corresponds to the Police Service Act 2003.

A witness identity protection certificate for an operative in relation to a proceeding must be filed in the court before the operative gives evidence in the proceeding.

The person who files the certificate must give a copy of it to each party to the proceeding at least 14 days (or such shorter period as is agreed to by the party) before the day on which the operative is to give evidence.

The court may order the person filing the certificate to give a copy of it to someone else stated in the order.

This section applies if – a witness identity protection certificate for an operative is filed in accordance with section 8(1); and either – a copy of the certificate is given to each party in accordance with section 8(2) and to each person in accordance with an order under section 8(3) (if any); or the court gives leave for this section to apply despite non-compliance with section 8(2) or (3).

If this section applies – the operative may give evidence in the proceeding under the assumed name, or court name, stated in the certificate; and subject to section 11 – a question must not be asked of a witness, including the operative, that may lead to the disclosure of the operative's identity or where the operative lives; and a witness, including the operative, cannot be required to (and must not) answer a question, give evidence or provide information that discloses, or may lead to the disclosure of, the operative's identity or where the operative lives; and a person involved in the proceeding must not make a statement that discloses, or may lead to the disclosure of, the operative's identity or where the operative lives.

For the purposes of this section, a person involved in a proceeding includes – the court; and a party to the proceeding; and a person given leave to be heard or make submissions in the proceeding; and a lawyer representing a person referred to in paragraph (b) or (c) or a lawyer assisting the court in the proceeding; and any other officer of the court or person assisting the court in the proceeding; and a person acting in the execution of any process or the enforcement of any order in the proceeding.

The court in which a witness identity protection certificate is filed may make any order it considers necessary or desirable to protect the identity of the operative for whom the certificate is given or to prevent the disclosure of where the operative lives.

A person is guilty of an offence if – the person knows that, or is reckless as to whether, an order has been made under subsection (1); and the person intentionally, knowingly or recklessly contravenes the order. Imprisonment for a term not exceeding 2 years.

Subsection (2) does not limit the court's power to punish for contempt.

This section applies if a witness identity protection certificate for an operative in relation to a proceeding is filed in a court.

A party to the proceeding, or a lawyer assisting the court in the proceeding, may apply to the court – for leave – to ask a question of a witness, including the operative, that may lead to the disclosure of the operative's identity or where the operative lives; or for a person involved in the proceeding to make a statement that discloses, or may lead to the disclosure of, the operative's identity or where the operative lives; or for an order requiring a witness, including the operative, to answer a question, give evidence or provide information that discloses, or may lead to the disclosure of, the operative's identity or where the operative lives.

The court may – give leave for the party or lawyer to do anything mentioned in subsection (2)(a); and make an order requiring a witness to do anything mentioned in subsection (2)(b).

However, the court must not give leave or make an order unless satisfied about each of the following:there is evidence that, if accepted, would substantially call into question the operative's credibility; it would be impracticable to test properly the credibility of the operative without allowing the risk of disclosure of, or disclosing, the operative's identity or where the operative lives; it is in the interests of justice for the operative's credibility to be able to be tested.

If there is a jury in the proceeding, the application must be heard in the absence of the jury.

Unless the court considers that the interests of justice require otherwise, the court must be closed when – the application is made; and if leave is given or an order is made, the question is asked (and answered), the evidence is given, the information is provided or the statement is made.

The court must make an order suppressing the publication of anything said when – the application is made; and if leave is given or an order is made, the question is asked (and answered), the evidence is given, the information is provided or the statement is made.

Nothing in subsection (7) prevents the taking of a transcript of court proceedings, but the court may make an order for how the transcript is to be dealt with, including an order suppressing its publication.

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

A person is guilty of an offence if – the person knows that, or is reckless as to whether, an order has been made under subsection (7), (8) or (9); and the person intentionally, knowingly or recklessly contravenes the order. Imprisonment for a term not exceeding 2 years.

Subsection (10) does not limit the court's power to punish for contempt.