Witness Protection Act 2000

Witness Protection Act 2000

This Act may be cited as the Witness Protection Act 2000.

This Act, except section 32 and Schedule 1, commences on a day to be proclaimed.

Section 32 and Schedule 1 commence on the day on which the Births, Deaths and Marriages Registration Act 1999 commences but, if this Act commences after the day on which the Births, Deaths and Marriages Registration Act 1999 commences, section 32 and Schedule 1 commence on the day on which this Act commences.

In this Act, unless the contrary intention appears –

approved authority means – the Commissioner of the Australian Federal Police; and a Commissioner (however designated) of the police force, or police service, of another State; and the Chief Executive Officer of the Australian Crime Commission; and an authority or body of the Commonwealth or another State that – is authorised to conduct inquiries or investigations in relation to conduct that constitutes, or is alleged to constitute, criminal conduct, misconduct or corruption; and is declared by the Minister, by notice published in the Gazette, to be an approved authority for the purposes of this Act;

authorising court order means a court order authorising the making of an entry under this Act;

complementary witness protection law means a law of the Commonwealth or another State that – makes provision for the protection of witnesses; and is declared by the Minister, by notice published in the Gazette, to be a complementary witness protection law;

member of the family, in relation to a witness, includes the person with whom the witness is in a personal relationship, within the meaning of the Relationships Act 2003;

officer of an approved authority means – in relation to an approved authority within the meaning of paragraph (a) or (b) of the definition of "approved authority", a person who is a member of the body of which the approved authority is Commissioner (however designated); in relation to an approved authority within the meaning of paragraph (c) of the definition of "approved authority", a person who is a member of the staff of the Australian Crime Commission; in relation to an approved authority within the meaning of paragraph (d) of the definition of approved authority, a person who is a member or an officer of the approved authority;

participant means a person who is included in the Tasmanian witness protection program;

recognised participant means a person who is included in a witness protection program established under a complementary witness protection law, but who is not included in the Tasmanian witness protection program;

register of births means the Register maintained under Part 7 of the Births, Deaths and Marriages Registration Act 1999;

register of marriages means the Register maintained under Part 7 of the Births, Deaths and Marriages Registration Act 1999;

Registrar means the Registrar of Births, Deaths and Marriages;

State includes Territory;

Tasmanian witness protection program means the program established and maintained by the Commissioner of Police under section 4;

witness means – a person who has given, or agreed to give, evidence on behalf of the Crown in – proceedings for an offence; or hearings or proceedings before an authority that is declared by the Minister, by notice published in the Gazette, to be an authority to which this paragraph applies; or a person who has given, or 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 Tasmania, the Commonwealth or another State; or a person who has made a statement to a police officer or an approved authority in relation to an offence against a law of Tasmania, the Commonwealth or another State; or a person who, for any other reason, may require protection or other assistance under this Act.

The Commissioner of Police, through the establishment and maintenance of a Tasmanian witness protection program, may take such action as he or she thinks necessary and reasonable to protect the safety and welfare of a witness or a member of the family of a witness.

The action referred to in subsection (1) may include – applying for any document necessary – to allow the witness or family member to establish a new identity; or otherwise to protect the witness or family member; and relocating the witness or family member; and providing accommodation for the witness or family member; and providing transport for the property of the witness or family member; and doing any other things that the Commissioner of Police considers necessary to ensure the safety of the witness or family member.

The Commissioner of Police must not obtain documentation for a witness or family member that represents that the witness or family member – has a qualification that he or she does not have; or is entitled to a benefit that he or she is not entitled to.

The Commissioner of Police has the sole responsibility of deciding whether to include a witness in the Tasmanian witness protection program, including cases where an approved authority has requested that a witness be included in the program.

A witness may be included in the Tasmanian witness protection program only if – the Commissioner has decided that the witness be included; and the witness agrees to be included; and the Commissioner enters into a memorandum of understanding with the witness in accordance with section 8.

The Commissioner of Police may make commercial arrangements with a person under which a witness or a member of the family of a witness is able to obtain a benefit under a contract or arrangement without revealing his or her former identity.

A police officer or an officer of an approved authority authorised to do so under an authorising court order may cause the Registrar to make a new entry in the register of births or register of marriages for the purposes of this Act.

Section 54 of the Births, Deaths and Marriages Registration Act 1999 does not apply in respect of any statement or entry made for the purposes of this Act.

For the purposes of section 5(2)(c), a memorandum of understanding between the Commissioner of Police and a witness must – set out the basis on which the witness is included in the Tasmanian witness protection program and details of the protection and assistance that are to be provided; and contain a provision to the effect that protection and assistance under the program may be terminated if the witness breaches a term of the memorandum of understanding.

A memorandum of understanding may contain provisions relating to – any outstanding legal obligations of the witness and how they are to be dealt with; and any legal obligations that the witness may or may not enter into; and the surrender and issue of passports; and the issue of any documents relating to the new identity of the witness; and the prohibition of the witness from engaging in specified activities; and marriage, family maintenance, taxation, welfare or other social or domestic obligations or relationships; and any other obligations of the witness; and if a new identity is to be extended to any member of the family of the witness, provisions relating to paragraphs (a), (b), (c), (d), (e), (f) and (g) in relation to each member of the family to the extent that such provisions are necessary; and any other matter for which it may be necessary or convenient to make provision.

A memorandum of understanding must contain a statement advising the witness of his or her right to complain to the Ombudsman about the conduct of a police officer in relation to the matters dealt with in the memorandum.

A memorandum of understanding must be signed – by the witness; or if the witness is under the age of 18, by a parent or guardian of the witness; or if the witness otherwise lacks legal capacity to sign, by a guardian or other legal personal representative of the witness.

If – a parent or guardian of a witness has signed a memorandum of understanding because the witness was under the age of 18; and the memorandum is still operating after the witness turns 18 – the Commissioner of Police may require the witness to sign the memorandum.

The Commissioner of Police may apply to the Supreme Court for a court order authorising a nominated police officer to cause the Registrar to make a new entry in the register of births or register of marriages in respect of a participant or a participant and specified members of the family of the participant.

An approved authority may apply to the Supreme Court for a court order authorising a nominated officer or officers of the approved authority to cause the Registrar to make a new entry in the register of births or register of marriages in respect of a recognised participant or a recognised participant and specified members of the family of the recognised participant.

The Commissioner of Police or an approved authority must provide such evidence as the Supreme Court may require so as to satisfy itself as to the matters specified in section 10.

The Supreme Court may make an authorising court order referred to in section 9 if it is satisfied that –

the person named in the application as a witness is a participant or a recognised participant; and the life or safety of the person or of a member of his or her family may be endangered as a result of the person being a witness; and the person is likely to comply with the memorandum of understanding that the person has entered into under section 8 or under the provisions of a complementary witness protection law.

On the making of an authorising court order under section 10 –

the police officer or officer or officers of an approved authority nominated in the authorising court order may cause the Registrar to make any entries in the register of births or register of marriages that are necessary to give effect to the order; and the Commissioner of Police must maintain records showing details of the original birth entry or original marriage entry of each person in respect of whom an entry is made under paragraph (a).