WITNESS PROTECTION REGULATIONS 2018 (F2018L01728) EXPLANATORY STATEMENT

Commonwealth Numbered Regulations - Explanatory Statements

[Index] [Search] [Download] [Related Items] [Help]

WITNESS PROTECTION REGULATIONS 2018 (F2018L01728)

EXPLANATORY STATEMENT

Issued by the Minister for Home Affairs

Witness Protection Act 1994

Witness Protection Regulations 2018

The Witness Protection Act 1994 (the Act) establishes 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.

Section 32 of 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.

Paragraph 16(1)(b) of the Act provides the Australian Federal Police Commissioner (the Commissioner) with the power to give a NWPP participant, who has been given a new identity, permission to not disclose their original identity or a former NWPP identity in circumstances where they would otherwise be expected to disclose under a law of the Commonwealth. This permission must be in the form prescribed by the regulations.

Subsection 16(4) of the Act provides that a NWPP participant is permitted to not disclose their original identity or former NWPP identity to a Commonwealth officer for a particular purpose, if it is lawful under a complementary witness protection law of a State or Territory for a participant to not disclose for a purpose approved by the Commissioner.

Subsection 16(5) of the Act states that the regulations may prescribe a form for the purposes of subsection (1) and (4).

Section 27A of the Act requires a NWPP participant to notify the Commissioner when they are involved in a civil proceeding in which their identity is in issue. Subsection 27A(3) defines a 'civil proceeding' to mean any proceeding in a court, a tribunal or a Royal Commission of the Commonwealth, a State or a Territory or any other commission of inquiry, other than a criminal proceeding. Subsection 27A(3) then lists a number of proceedings that are considered civil proceedings, including any interlocutory or other proceeding prescribed by regulations. The proceedings listed are not exhaustive and are only included for clarity and to avoid any doubt.

The Witness Protection Regulations 1995 (the Witness Protection Regulations 1995) sunset on 1 April 2019. The Witness Protection Regulations 1995 provide the forms that can be used to grant a NWPP participant permission to not disclose their original identity or former NWPP identity, and also lists proceedings which should be considered civil proceedings for the purpose of section 27A(3) of the Act.

The Witness Protection Regulations 2018 (the Regulations) remake the Witness Protection Regulations 1995 in their entirety with minor amendments for clarity.

The Regulations were informed by consultation with the Australian Federal Police, the Australian Criminal Intelligence Commission, the Australian Commission for Law Enforcement Integrity and the Australian Government Solicitor.

The following State and Territory justice agencies were also consulted:

* the Department of the Attorney-General and Justice (NT)

* the Department of Justice and the Attorney-General (Qld)

* the Attorney-General's Department (SA)

* the Department of Justice (Tas)

* the Department of Justice and Regulation (Vic)

* the Department of Justice (NSW)

* the Department of Justice (WA), and

* the Department of Justice and Community Safety (ACT).

These stakeholders agreed that the Witness Protection Regulations 1995 should be remade in their entirety with minor amendments for clarity.

Details of the Regulations are set out in Attachment A.

A Statement of Compatibility with Human Rights prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 is set out at Attachment B.

The Office of Best Practice Regulation (the OBPR) has been consulted in relation to the Regulations, and has advised that a Regulation Impact Statement is not required. The OBPR reference is 23818.

There are no conditions that need to be satisfied before the power to make the Regulations may be exercised.

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

The Regulations commenced the day after registration on the Federal Register of Legislation.

Authority: Section 32 of the
Witness Protection Act 1994

ATTACHMENT A

Details of the Witness Protection Regulations 2018

Section 1 – Name

This section provides that the title of this instrument is the Witness Protection Regulations 2018 (the Regulations).

Section 2 - Commencement

This section provides that the whole of the instrument is to commence the day after the instrument is registered.

Section 3 - Authority

This section provides that this instrument is made under the Witness Protection Act 1994 (the Act).

Section 4 - Schedule 2

This section provides that each instrument specified in Schedule 2 to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

Section 5 - Definitions

The note in this section provides that a number of expressions used in the instrument are defined in the Act.

The section defines 'Act' to mean the Witness Protection Act 1994.

Section 6 - Permission not to disclose former identity - prescribed form

Subsection 16(1) of the Act provides that a participant given a new identity under the NWPP, who would otherwise be required to disclose their original identity or former NWPP identity by or under a law of the Commonwealth, is not required to do so if they have permission from the Commissioner, in the prescribed form, to not disclose their former identity or original identity for a particular purpose.

Subsection 16(5) of the Act states the regulations may prescribe a form for the purposes of subsection (1) and (4).

This section, provides that the prescribed form for subsection 16(1) is set out in Form 1 in Schedule 1 and the form that may be used for the purposes of subsection 16(4) of the Act is set out in Form 2 in Schedule 1.

Section 7 - Meaning of civil proceeding

Subsection 27A(1) of the Act requires a participant to notify the Commissioner if the participant is to be involved in a civil proceeding under their current NWPP identity, in which their identity is in issue. Subsection 27A(2) provides that after receiving such notification, the Commissioner may take any action that they consider appropriate in the circumstances.

Subsection 27A(3) defines 'civil proceeding' for the purposes of section 27A. 'Civil proceeding' means 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. To avoid doubt, subsection 27A(3) lists several proceedings that would be considered a civil proceeding for the purposes of section 27A including any proceeding prescribed by the regulations.

Section 7 provides that an application for a restraining order under Division 2 of Part 2-1 of the Proceeds of Crime Act 2002 and an examination conducted under Division 3 of Part 3-1 of the Proceeds of Crime Act 2002 are both prescribed as civil proceedings for the purposes of section 27A of the Act.

This provides certainty that applications and examinations under the Proceeds of Crime Act 2002 constitute civil proceedings, providing clarity to participants about their obligations under section 27A of the Act.

Schedule 1--Forms

This Schedule sets out the forms to be used for permissions under section 16 of the Act.

Form 1 sets out the form to be used under subsection 16(1) of the Act and Form 2 sets out the form that may be used under subsection 16(4) of the Act.

Schedule 2--Repeals

This Schedule repeals the whole of the Witness Protection Regulations 1995, as these Regulations have been replaced by the Witness Protection Regulations 2018.

ATTACHMENT B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Witness Protection Regulations 2018

This Disallowable Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Disallowable Legislative Instrument

This Disallowable Legislative Instrument contains two main provisions. Firstly, it sets out the forms the Australian Federal Police Commissioner (the Commissioner) must use when granting a NWPP participant permission to not disclose their former identity. Secondly, it states that a restraining order under Division 2 of Part 2-1 and an examination conducted under Division 3 of Part 3-1 of the Proceeds of Crime Act 2002 are to be considered civil proceedings for the purposes of paragraph 27A(3)(d) of the Act.

Subsection 27A(1) of the Act requires a NWPP participant to notify the Commissioner if the participant is to be involved in a civil proceeding under their current NWPP identity, in which their identity is in issue. Subsection 27A(2) provides that after receiving such notification, the Commissioner may take any action that they consider appropriate in the circumstances.

Human rights implications

This Disallowable Legislative Instrument engages the right to protection against arbitrary and unlawful interferences with privacy (Article 17 of the International Covenant on Civil and Political Rights (ICCPR)).

Article 17 of the ICCPR prohibits arbitrary or unlawful interference with a person's privacy, family, home or correspondence, and unlawful attacks on a person's honour and reputation. It also provides that everyone has the right to the protection of the law against such interference or attacks.

This Disallowable Legislative Instrument positively engages the right to protection against unlawful and arbitrary interference with privacy as it provides a process (through the use of regulated forms) through which the Commissioner can provide permission for a NWPP participant to not disclose their original or former identity. This strengthens the protection of a person's privacy.

Conclusion

This Disallowable Legislative Instrument is compatible with human rights as it does not raise any human rights issues.