EXPLANATORY STATEMENT

Select Legislative Instrument 2010 No. 18

Issued by the authority of the Minister for Home Affairs

Witness Protection Act 1994

Crimes Legislation Amendment (Serious and Organised Crime) Act (No. 2) 2010

Witness Protection Amendment Regulations 2010 (No. 1)

Section 32 of the Witness Protection Act 1994 (the Act) provides that the Governor‑General may make regulations prescribing matters required or permitted to be prescribed by the Act, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 

The Crimes Legislation Amendment (Serious and Organised Crime) Act (No. 2) 2010 (SOC Act No. 2) amends the Act to improve the operation of the National Witness Protection Program (NWPP). The NWPP provides protection and assistance to people who are assessed as being in danger because they have given, or have agreed to give, evidence on behalf of the Crown in criminal or certain other proceedings, or because of their relationship to such a person.

 

The Regulations make consequential changes to the Witness Protection Regulations (the Principal Regulations) in line with the amendments made by the SOC Act No. 2.

 

Specifically, the Regulations:

 

• update the forms for the Commissioner of the Australian Federal Police (the Commissioner) to give a NWPP participant permission to not disclose a previous identity, where the participant would otherwise be obliged to do so under a law of the Commonwealth (for example, when applying for a passport or other identity document)

 

• prescribe certain interlocutory proceedings under the Proceeds of Crimes Act 2002 as falling within the definition ‘civil proceeding’ for the purposes of the Act to clarify that a participant is required to notify the Commissioner if he or she is to be involved in such proceedings in a circumstance where his or her identity would be in issue, and

 

• update the name of the Principal Regulations to reflect modern naming conventions for legislative instruments.

Details of the Regulations are set out in the Attachment.

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

The Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments

Law enforcement agencies and intelligence agencies were consulted during the development of these Regulations, and their comments were incorporated into the drafting. These Regulations are not likely to impact on business or restrict competition

ATTACHMENT

Details of the Witness Protection Amendment Regulations 2010 (No. 1)

The Witness Protection Act 1994 (the Act) provides a statutory basis for the National Witness Protection Program (NWPP). The NWPP provides protection and assistance to people who are assessed as being in danger because they have given, or have agreed to give, evidence or a statement on behalf of the Crown in criminal or certain other proceedings, or because of their relationship to such persons.

The NWPP is maintained by the Commissioner of the Australian Federal Police, who has responsibility for deciding whether to include a witness in the NWPP or provide protection and assistance to a person under the NWPP. The types of protection and assistance that may be provided under the NWPP include, but are not limited to:

• providing a person with a new identity
• relocating a person
• assisting with finding accommodation, and
• assisting with obtaining employment and access to education under a new identity or in a new location.

The Crimes Legislation Amendment (Serious and Organised Crime) Act (No. 2) 2010 (SOC Act No. 2) amends the Act to provide increased protection and security to: people included in, or provided with assistance under, the NWPP; members of the Australian Federal Police who serve in the Witness Protection Unit; and other AFP employees involved in the operation of the NWPP.

Specifically, the SOC Act No. 2:

• clarifies the application of the Witness Protection Act to witnesses involved in State and Territory matters
• updates the concept of identity in the Witness Protection Act
• extends the availability of protection under the NWPP to former participants and related persons, and
• updates and extends the scope of non-disclosure offences.

These Regulations amend the Witness Protection Regulations (the Principal Regulations) in accordance with these changes.

Regulation 1 – Name of Regulations

This regulation provides that the title of the Regulations is the Witness Protection Amendment Regulations 2010 (No. 1).

Regulation 2 – Commencement

This regulation provides that the Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.

Regulation 3 – Amendment of Witness Protection Regulations

This regulation provides that the Witness Protection Regulations are amended as set out in Schedule 1.

Schedule 1 – Amendments

Item [1] – regulation 4A

The Principal Regulations are currently named the Witness Protection Regulations. This naming style was in place at the time the Regulations were created.

Item 1 amends regulation 1 to rename the Principal Regulations the Witness Protection Regulations 1995, to reflect modern conventions for naming legislative instruments.

Items [2] – after regulation 4

New subsection 27A(1) of the Act requires a participant to notify the Commissioner if he or she is to be involved in a civil proceeding under his or her current NWPP identity, in which his or her identity is in issue. New subsection 27A(2) provides that after receiving such notification, the Commissioner may take any action that he or she considers appropriate in the circumstances.

New subsection 27A(3) defines ‘civil proceeding’ for the purposes of section 27A. ‘Civil proceeding’ will mean any proceeding in a court, tribunal, a Royal Commission of the Commonwealth, a State or a Territory or any other commission of inquiry other than a criminal proceeding.

Item 2 inserts a new regulation 5 to provide that for the purposes of subsection 27A(3) of the Witness Protection Act, a ‘civil proceeding’ includes an application for a restraining order under Part 2-1 of the Proceeds of Crime Act 2002, and an examination conducted pursuant to Part 3-1 of the Proceeds of Crime Act. This provides certainty that applications and examinations under the Proceeds of Crime Act constitute civil proceedings, providing clarity to participants about their obligations under section 27A of the Act.

Items [3] – Schedule 1

The SOC Act No. 2 amended section 16 of the Act to reflect the updated concept of identity. The Act now differentiates between a participant’s original identity, current NWPP identity and former NWPP identity.

Current NWPP identity, in relation to a participant at a particular time, means an identity provided to a participant under the NWPP which is being used by the participant at that time. Former NWPP identity, in relation to a participant at a particular time, means an identity that was provided to a person under the NWP before that time and is not the participant’s current NWPP identity.

Under subsection 16(1) of the Act, the Commissioner may give a NWPP participant permission to not disclose his or her identity, where the participant would otherwise be obliged to under a law of the Commonwealth.

Subsection 16(5) provides that if a complementary witness protection law of a State or Territory provides that it lawful for a participant not to disclose his or her former identity for a purpose approved by the Commissioner, the participant is not required to disclose his or her former identity to a Commonwealth officer for that purpose.

Schedule 1 to the Principal Regulations prescribes the forms in which the permission of the Commissioner is to be given.

Item 3 replaces the existing forms with new ones to reflect the changes made by the SOC No. 2 Act. Specifically, the new forms distinguish between whether the permission of the Commissioner relates to a participant’s original identity or a former NWPP identity. If the permission relates to the former NWPP identity of the participant, the Commissioner is required to include the date on which that identity was provided to the participant. It would otherwise be unclear which of the participant’s identities the permission relates.