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1
Witness Protection
WITNESS PROTECTION BILL 2000
EXPLANATORY NOTES
GENERAL OUTLINE
Objective of the Bill
The objective of the Bill is to provide protection for witnesses.
Reasons for the objective
The role of witnesses in providing assistance to law enforcement
agencies and courts is essential. The need for government protection of
certain witnesses is recognised worldwide, particularly in relation to
witnesses giving information and testimony concerning major and
organised crime. Witness protection provides security and incentive to give
assistance, in the absence of which such assistance may not be forthcoming.
Witness protection also recognises the responsibility of government to
provide protection for persons who put themselves at great risk to personal
safety.
How the objective will be achieved
The protection of witnesses in Queensland will be achieved by extending
and providing legislative backing to the current witness protection scheme
operated by the Criminal Justice Commission. This will be achieved as
follows:
1. The Bill meets the vision of a national coordinated witness protection
scheme, launched in 1994 by the Federal Government. Other States
have already met legislative implementation.
2. Complementary Queensland legislation is required before Federal
Government agencies will provide important Commonwealth identity
documents, such as passports and tax file numbers, to Queensland
protected witnesses. Without this, the ability of the witness protection
division to protect witnesses through re-identification is hampered.
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Witness Protection
3. The Bill will augment current inadequate legislation on witness
protection. Only three provisions in the Criminal Justice Act 1989
currently deal with witness protection. These provisions essentially
define witness protection and establish the witness protection division
and provide for its functions. The provisions do not cover important
issues that are addressed by the Bill. In summary, the Bill:
· provides a statutory basis for arrangements with witness
protection authorities in other jurisdictions;
· provides an outline of the conditions pursuant to which protection
is offered and maintained, including a requirement that a witness
accepted onto the program sign a Protection Agreement;
· sets criteria for the chairperson of the Criminal Justice
Commission to consider before accepting a person onto the
program;
· outlines the circumstances in which termination of protection may
occur;
· provides for the ability for interim protection to be offered
pending the consideration of an application for full protection;
· provides that where a witness is assessed as being in need of
protection on a long-term basis, steps may be taken to have the
identity of the witness changed;
· allows for the creation of a new birth certificate to assist in the
establishment of a new identity;
· provides for witness anonymity in a proceeding where a protected
witness or former protected witness who has been given a new
identity is or may be required to give evidence;
· creates various offences including an offence for a person to
disclose information about the program or a witness;
· authorises the chairperson to disclose a witness's former identity
and personal details in circumstances where the interests of justice
require this; and
· exempts decisions made by the chairperson under the Witness
Protection Act from the operation of the Judicial Review Act 1991
and exempts witness protection documents from the operation of
the Freedom of Information Act 1992.
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Witness Protection
Alternative way of achieving objectives
Without complementary witness protection legislation the current scheme
of witness protection under the Criminal Justice Act 1989 could continue.
This would mean, however, that Queensland would not deliver on its
support of the national scheme and that services from other State and the
Commonwealth agencies will continue to be denied to witnesses protected
on the Queensland witness protection program.
Administrative cost to Government for Implementation
There is a minimal cost of implementing the legislation--approximately
$5,000 associated with the cost of establishing the procedure for creating
new identities for protected witnesses.
Consistency with Fundamental Legislative Principles
The Bill is not consistent with fundamental legislative principles as
follows:
Limiting the rights and liberties of individuals
Section 4(2) of the Legislative Standards Act 1992 provides that
fundamental legislative principles require that legislation should have
sufficient regard to the rights and liberties of individuals. The Bill provides
for witness anonymity in the case of a person who has been given a new
identity under the legislation. The argument against witness anonymity is
that it affects the fundamental right of an accused person in proceedings to
confront and cross-examine adverse witnesses on credibility.
The arguments for extending witness anonymity to re-identified persons
under a witness protection program are:
· The need for witness anonymity in this circumstance will occur
only rarely. Since the introduction in the mid 1990's of the other
states' Witness Protection Acts, only two instances in total of this
issue arising could be recalled by officers in four states.
· The criminal history, if any, of the witness will still be available to
the court and where appropriate the court may make it available to
any party to the relevant proceeding.
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Witness Protection
· The Bill provides that the court may grant leave in certain
circumstances, for questions to be asked of a person (including
the person named in the non-disclosure certificate) that may
disclose the former identity of the person named in the
non-disclosure certificate. These circumstances will arise where
there is some evidence which, if believed, would call into question
the credibility of the witness and it is in the interests of justice that
the witness's credibility be tested and it would be impractical to
test their credibility without first knowing their actual identity.
The Bill also provides that an applicant for inclusion in the program must
disclose to the chairperson a considerable amount of personal information,
including information about outstanding debts, marital and domestic
circumstances and medical information. Whilst this raises an issue about
privacy concerns, it is considered necessary that this information be
gathered to enable the chairperson to adequately determine the eligibility of a
person wishing to be included in the program and, in the event that person is
included in the witness protection program, to protect third parties to whom
some obligation (financial or otherwise) may be owed by that person.
Conferring immunity from proceeding or prosecution without adequate
justification
The Bill provides protection against civil liability for actions taken by
persons acting in good faith and without negligence under the provisions of
the Bill. This immunity is justified to protect those who perform certain
functions as set out in the Act. For example it is intended to protect officers
of the commission and the commission itself from liability in respect of
third party interests or rights affected as a result of an action taken under the
program, for instance, the hindrance of a civil action by reason of the
re-identification of a protected witness.
Judicial Review Act 1991
The Bill provides that decisions made by the chairperson in relation to
witness protection are excluded from the operation of the Judicial Review
Act 1991. This is considered justified as internal levels of assessment
within the Criminal Justice Commission are strict and numerous. Also,
evidence required to be adduced in a judicial review of a decision involving
witness protection, may well disclose processes which could prejudice
witness protection methods. That in turn may put at risk witnesses under
protection. If an external reviewer is involved there are increased
opportunities for unauthorised dissemination of sensitive information.
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Witness Protection
This approach is consistent with provisions of the Federal Witness
Protection Act 1994. The chairperson's decisions will still be open to
review by the Parliamentary Criminal Justice Committee and the
Parliamentary Commissioner in accordance with the Criminal Justice Act
1989.
Freedom of Information Act 1992
The Bill provides that documents relating to witness protection are
excluded from the operation of the Freedom of Information Act 1992.
Witness protection documents currently fall within the exemptions that may
be claimed under this Act, however, this is not considered sufficient
protection as these provisions do not give automatic exemption and could
involve review of an exemption claim. Again, for the reasons outlined
above, external review processes have the potential to compromise the
security of the program and put witnesses at risk.
Consultation
Consultation has taken place with the following bodies and persons--
Criminal Justice Commission; Office of the Queensland Parliamentary
Counsel; Parliamentary Criminal Justice Committee; Queensland Crime
Commission; Chief Justice Supreme Court; Chief Judge District Court;
Chief Stipendiary Magistrate; Department of Justice and Attorney-General;
Office of the Court Administrator, Supreme and District Courts;
Registrar-General Births, Deaths and Marriages; Department of Housing;
Queensland Police Service; Bar Association of Queensland; Queensland
Law Society; Office of the Adult Guardian; The Public Trustee of
Queensland and the Queensland Council for Civil Liberties.
There is support for the Bill.
NOTES ON PROVISIONS
PART 1--PRELIMINARY
Clause 1 provides that the short title for the Act is the Witness Protection
Act 2000.
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Witness Protection
Clause 2 states that the Act will commence on a day to be fixed by
proclamation.
Clause 3 provides that the dictionary to the Act is found in schedule 2.
Clause 4 provides that the Act binds the State, Commonwealth and other
States.
PART 2--WITNESS PROTECTION PROGRAM
Clause 5 provides a definition of "witness protection program". The
witness protection program provides witness protection to persons accepted
onto the program and persons on witness protection programs in other
states. The witness protection division of the Criminal Justice Commission
(the commission) runs the witness protection program.
Clause 6 provides the criteria for eligibility for inclusion in the program.
A person must need protection from a danger arising from assistance that
was provided to a law enforcement agency. The term "law enforcement
agency" is defined in schedule 2 as the commission, the Queensland Crime
Commission, a commission of inquiry, the Queensland Police Service, the
police service of another state or another entity declared to be so by
regulation.
The definition includes persons such as family members who are
considered "protected witnesses" under the Act not by virtue of their having
given assistance, but by their relationship with another person who has
given assistance.
Finally, the chairperson (defined in schedule 2 as the chairperson of the
commission) must consider that it is appropriate to include the person in the
program. This is to be determined by reference to the criteria set out in
subsection 3. The disclosure of relevant information under these criteria
allows the chairperson to properly judge whether or not a person should be
included in the witness protection program.
The information that the chairperson must have regard to includes
information disclosed to the chairperson as required under regulation (see
subclause 6(1)(h)). The matters that may be included in the regulation can
be seen by reference to clause 8 of the Bill. Clause 8 outlines the matters
that may be required to be disclosed in the protection agreement, the
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Witness Protection
document that is signed by the witness and the chairperson upon acceptance
of a person into the witness protection program. Matters included in a
protection agreement may include outstanding legal and financial obligations
and domestic and family arrangements. The disclosure of such material
aids in preventing a protected witness from evading his or her existing
legal/financial obligations. Particularly in instances where protection
includes a change of identity, this serves to protect innocent third parties
who may have an interest in those obligations. Also, personal and domestic
matters such as custody and access to children are relevant to the provision
of protection to a protected witness and his or her family.
Clause 6 also provides the circumstances in which a person is not to be
included in the witness protection program. Inclusion of a person in the
program is neither intended as a reward for the assistance provided, nor as a
means of persuading a person to give assistance. Rather, an offer of
protection is made because, as a result of assistance provided, a threat to that
person has arisen. Also, if insufficient information is available to the
chairperson to make an assessment, then an offer of protection cannot be
made. The clause provides that if the chairperson decides not to include the
person in the program the chairperson must notify that person. The clause
refers by footnote to clause 45, which provides for how notice may be
given.
Clause 7 requires the chairperson to prepare a protection agreement if he
or she decides that a person is to be included in the witness protection
program. A protection agreement is a document setting out the basis upon
which a person is to be included in the witness protection program. The
clause provides that the protection agreement takes effect when the person
and the chairperson have signed the protection agreement.
A protection agreement includes what type of protection and assistance is
to be provided. The clause refers by footnote to clause 46, which provides
for who may sign documents on behalf of a protected witness who is a
minor or person with impaired capacity. The chairperson must notify either
the protected witness of their inclusion in the program or the person who
signed the protection agreement on behalf of the protected witness as soon
as practicable after the agreement has been signed.
Clause 8 outlines some conditions that may be included in a protection
agreement. The first condition is a mandatory condition, namely that breach
by the protected witness of certain conditions of the protection agreement
may lead to termination of the protected witness's involvement in the
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Witness Protection
witness protection program. The conditions, the breach of which may lead
to termination, must be identified as such in the protection agreement. The
clause also provides for matters that the person to be included in the witness
protection program may be required to disclose in the protection agreement
such as lists of aliases the person uses or has used, their outstanding legal
obligations and details of their marital, family, taxation, welfare and other
obligations.
Clause 9 allows the chairperson to offer interim protection to a person
prior to a decision being made by the chairperson as to whether that person
should be offered full protection under the Act. Provision for interim
protection allows for protection to be provided to a person on an urgent
basis. The clause also provides that other clauses that require certain steps
to be taken before full protection can be offered do not apply to an offer of
interim protection. This means that the type and range of information that
must be provided to the chairperson and considered in accordance with
clause 6 regarding a decision to offer full protection, are not required in this
circumstance. An initial urgent assessment must be made, however, to
determine whether the person has provided assistance and whether because
of this assistance there is a threat to the person. Upon this basis interim
protection can be offered.
The clause requires that a full protection agreement in accordance with
clause 8 be entered into if a person is subsequently offered full protection
under the witness protection program.
Clause 10 provides that a protection agreement may be amended by
agreement between the chairperson and a protected witness. Protection may
be an ongoing necessity for a protected witness for many years during
which time changes occurring during that person's lifetime may need to be
reflected in the protection agreement.
The clause also provides for when such an amendment takes effect. An
amendment cannot remove the mandatory condition referred to in clause 8.
Clause 11 provides that the chairperson may decide to amend a
protection agreement other than with the agreement of the protected witness.
In order to provide natural justice to a protected witness, the chairperson is
required to advise the protected witness of his or her intention to amend the
protection agreement in order to allow the protected witness the opportunity
to be heard on the proposed amendment. Any amendment made by the
chairperson must then be notified to the protected witness. The clause also
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Witness Protection
provides for when an amendment takes effect. An amendment cannot
remove the mandatory condition referred to in clause 8.
Clause 12 provides that the chairperson may suspend the protection of a
protected witness for a stated reasonable time if the chairperson is satisfied
that the protected witness can not be properly protected because of
something the protected witness has done or intends to do. The clause
provides that the chairperson must give notice to the protected witness if he
or she decides to suspend the protection. This clause does not limit the
operation of clause 14, which provides that the chairperson may end the
protection of the protection witness.
Clause 13 provides that a protected witness may withdraw from the
witness protection program by giving written or oral notice to the
chairperson. Where the protected witness has given oral notice, the
chairperson must take reasonable steps to have the oral notice confirmed in
writing, or where the oral notice can not be confirmed in writing, the
chairperson must satisfy himself or herself that the oral notice was in fact
given by the protected witness. The clause also provides for when the
protection ends.
Clause 14 sets out the grounds upon which the chairperson may decide
to terminate protection. The first ground is that the chairperson is satisfied
that a protected witness has committed an offence that is punishable by
more than 1 year's imprisonment. In fairness to a protected witness, the
commission of minor offences punishable by less than one year's
imprisonment is not a trigger for the termination of protection.
Accordingly, the clause does not provide that any offence may result in
termination.
The second ground is that the chairperson is satisfied that a protected
witness has contravened a termination condition of the protection
agreement. Again, in fairness to the witness, the contravention must be
significant and not with reasonable excuse, such that a minor or excusable
breach will not result in termination.
The third ground is that the chairperson is satisfied that the protected
witness has withdrawn his/her assistance.
The final ground is that the chairperson considers that it is no longer
appropriate for the protected witness to be in the program including because
the conduct of the protected witness is a threat to the security of the witness
protection program.
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Witness Protection
Before ending the protection the chairperson must take all reasonable
steps to inform the protected witness why the chairperson proposes to
terminate the protection and the time when he or she proposes to end the
protection. The protected witness must also be given a reasonable
opportunity to respond. Clause 14 also provides for when the protection
ends. The clause also provides that, where a person who as a protected
witness was given financial assistance under a protection agreement, has
acknowledged that the protection has ended, the chairperson may continue
to provide financial assistance to the person for a period considered
appropriate by the chairperson.
PART 3--PROTECTING IDENTITY OF WITNESS
Clause 15 provides that the chairperson may require a person to issue
documents to assist in the protection of a witness's identity. Where a
protected witness is assessed as being in need of protection on a long-term
basis, the most frequent course taken is to relocate that protected witness
and his or her immediate family. In some instances arrangements are made
for the provision of documents that help to protect the actual identity of the
protected witness. This clause enables the chairperson to arrange for the
provision of documents, such as driver's licences, to help a protected
witness to establish or support an identity other than their actual identity.
This clause does not apply to the issue of new birth certificates, which is
specifically provided for in later clauses.
The clause provides that the chairperson may, in a way the chairperson
considers appropriate, make this requirement of a person to issue a
document or make a necessary entry in a record. This is intended to give
flexibility to the chairperson so that the chairperson is not put in a position
that might jeopardise the integrity of the program. The person must comply
with the request.
Clause 16 provides that the chairperson may apply in writing to the
authorising officer for a new identity authority in relation to a protected
witness. The power to authorise a new identity authority is provided for in
clause 17. The new identity authority authorises a named officer of the
witness protection division to create a new birth certificate to give a
protected witness a new identity. The authorising officer is defined in the
dictionary in schedule 2 to the Bill.
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Witness Protection
A birth certificate is arguably the most important identity document that
can be obtained for a protected witness as part of their protection, as it in fact
gives that protected witness a new identity. A birth certificate enables a
protected witness to obtain a passport in addition to many other forms of
identity. The clause provides that an application for a new identity authority
must contain sufficient information to enable the authorising officer to
properly consider it.
Clause 17 provides that the authorising officer may issue a new identity
authority if he or she is satisfied of a number of conditions.
Clause 18 provides that a new identity authority authorises the creation of
a new birth certificate by the officer of the witness protection division
named in the authority. The clause also provides that the Registrar-General
of Births Deaths and Marriages must give the witness protection division
officer reasonable assistance to carry out the creation of the new birth
certificate. This does not mean that the Registar-General creates the birth
certificate under this Bill. Only the witness protection division officer named
in the new identity authority is authorised to create a birth certificate under
this Bill. Before the authority can be exercised, however, the officer must
produce to the Registrar-General for inspection the new identity authority.
Clause 19 provides that a new identity created under a new identity
authority is taken to be the protected witness's true identity for all purposes.
This has effect unless the former identity is restored. "Former identity" is
defined in the dictionary in schedule 2 to the Bill.
Clause 20 provides protection for persons who are involved in the
authorisation and issue of documents that may be used to conceal the actual
identity of a protected witness and their personal particulars by making the
authorisation and issue of those documents lawful. The clause protects
them against offending against any Act or law and against the issue of civil
proceedings against them.
The clause also provides that any contract or agreement entered into with
a protected witness or former protected witness who has been re-identified
under this Act is not invalidated only because that person has used a new
identity.
Clause 21 provides that, in the event that protection has ended for a
person who has been subject to a change of identity, the chairperson may
take steps to restore that person's former identity. The clause provides that
the chairperson must have regard to certain things in deciding whether to
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Witness Protection
restore a person's former identity. The chairperson must take reasonable
steps to notify the person of his or her intention to restore their former
identity and the reasons why; and give the person a reasonable opportunity
to respond. If the chairperson, after considering any response from the
person decides to restore their former identity, the chairperson must by
notice to the person require them to return to the chairperson the documents
referred to in 21(4)(a) and 21(4)(b). The person must comply with this
requirement.
The clause provides for a maximum penalty of 60 penalty units.
Clause 22 provides that in the event that the program has ended for a
particular witness, and particular documents have been returned to the
chairperson under a protection agreement or clause 21, the chairperson must
destroy the documents as soon as practicable or arrange for their destruction
with the person who issued them. This section will apply whether or not a
person has been re-identified under the Act. For example a person who has
not been re-identified may still be provided with documents (such as a
driver's licence) from time to time for the purpose of protecting their actual
identity. The return of these documents will be provided for in the terms of
the protection agreement. In circumstances where the program has ended
the chairperson must also ensure that those documents are destroyed.
Clause 23 provides that a person for whom a new birth certificate has
been created must not use or obtain a document issued by the
Registrar-General by use of his or her former identity unless his or her
former identity has been restored.
The clause provides for a maximum penalty of 60 penalty units.
Clause 24 applies to a protected witness or former protected witness who
has received a change of identity under the witness protection program. The
clause provides that such a person must notify the chairperson if the person
is or may be required to give evidence in relevant proceedings. The clause
provides for a maximum penalty of 60 penalty points. The terms "relevant
proceedings" and "relevant entity" are defined in the dictionary in schedule
2 to the Bill. "Relevant proceedings" include court or tribunal proceedings,
committal hearings, inquests, hearings and certain investigations under the
Criminal Justice Act 1989 or Crime Commission Act 1997 and
commissions of inquiry. "Relevant entity" means the entity in which the
relevant proceedings are held.
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Witness Protection
In practice, protected witnesses in Queensland will be giving the evidence
that has created the need for their protection under their true name, as this is
the name under which the accused person, or those who present a threat to
the witness, would identify the witness. After this assistance has been given
in court it may be necessary to apply for a new birth certificate for the
witness in order to establish a new identity and provide proper protection for
the witness. It is foreseeable that circumstances may arise some time after
the witness is given a new identity where the witness is again giving
evidence in proceedings. These proceedings may be in either the criminal or
civil jurisdiction, and unrelated to the original matter (for instance, if the
protected witness is a witness to a motor vehicle accident).
In these later proceedings, however, if the witness were required to reveal
his or her former identity, the witness's security and possibly the integrity
of the witness protection program would be compromised. There is an
argument that extending witness anonymity to protected witnesses (who are
not covert operatives) affects the fundamental right of an accused person in
proceedings to confront and cross-examine adverse witnesses on credibility.
However, protected witnesses are in sufficient danger as opposed to other
witnesses as to require protection by the State and are risking their lives to
assist the State in the prosecution of offenders.
Accordingly, clause 24 provides that where the chairperson becomes
aware that a person who has been given a new identity is or may be required
to give evidence in a relevant proceeding, the chairperson must give to the
relevant entity a non-disclosure certificate. The person named in the
non-disclosure certificate will be a protected witness or former protected
witness who has been given a new identity under the witness protection
program. The effect of giving this non-disclosure certificate is that no
question may be asked or answered, evidence or information given, or
statement made in the relevant proceeding that may disclose the former
identity of the person named in the non-disclosure certificate or where they
live.
If in the proceeding the relevant entity considers it appropriate, the
relevant entity may disclose to each party that it has been given a
non-disclosure certificate in respect of that person, and what the certificate
states. The relevant entity may only disclose the contents of the certificate in
the absence of the public, including the jury. The relevant entity must also
inform the parties of the effect of the certificate in the proceeding.
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Witness Protection
Clause 25 provides that the non-disclosure certificate must state certain
information about the person named in the non-disclosure certificate
(including their criminal history, if any), without including any information
that may disclose their former identity.
Clause 26 provides that the effect of giving to a relevant entity a
non-disclosure certificate is that no question may be asked or answered,
evidence or information given, or statement made in the relevant proceeding
that may disclose the former identity of the person named in the
non-disclosure certificate or where they live.
Clause 27 provides that where an application is made in a relevant
proceeding, the relevant entity may, if satisfied of a number of conditions,
give leave to a relevant party to the proceeding to ask questions of a person,
including the person named in the non-disclosure certificate, that may
disclose relevant information about the person named in the non-disclosure
certificate. If leave is given a person may, in accordance with the leave, ask
or answer questions, give information or evidence, or make statements that
could disclose or lead to the disclosure of the former identity of the person
named in the non-disclosure certificate or where they live.
The clause also provides that where the entity gives leave, that part of the
proceeding must be held in the absence of the public. In addition the
relevant entity must make an order for suppression of the publication of the
evidence to ensure that relevant information is not disclosed beyond that part
of the proceeding. In addition the relevant entity may make any order it
considers appropriate. The clause also provides a penalty for contravention
of an order made by the relevant entity where leave has been given under
this clause.
The maximum penalty is 85 penalty units or 1 year's imprisonment.
Clause 28 provides that documents obtained by the chairperson for a
protected witness must not grant to the protected witness qualifications or
benefits he or she does not already hold, or is not entitled to. For example, a
driver's licence cannot be issued as an identity document if the protected
witness is not entitled to hold a driver's licence.
Clause 29 provides that the chairperson may make commercial
arrangements with a third party, which benefit a protected witness without
the protected witness being required to disclose his or her former identity.
From time to time it may be necessary for the commission to assist a
protected witness who has been given a new identity in commercial matters.
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Witness Protection
For instance, a protected witness who has been given a new identity may
have real difficulties with bank loan applications or employment
applications, where the protected witness has no credit or employment
history under his or her new identity.
Clause 30 provides that where a protected witness has outstanding rights
or obligations, the chairperson must take reasonable steps to ensure that
these matters are dealt with according to law. If a protected witness is
subject to legal restrictions, the chairperson is to take reasonable steps to
ensure that he or she complies with those restrictions.
The clause further provides that the action the chairperson may take
where a protected witness has outstanding legal obligations includes
providing a protected witness with protection where he or she is to attend
court; or notifying a party or possible party to legal proceedings against the
protected witness that the chairperson will accept process issued by a court
or tribunal for the protected witness.
Clause 31 applies if the chairperson finds that a protected witness is
using his or her new identity to avoid obligations incurred under his or her
former identity or to avoid complying with restrictions imposed on the
protected witness under his or her former identity. In these circumstances
the chairperson is to notify the protected witness that unless the protected
witness agrees to deal with his or her obligations or comply with any
restrictions, the chairperson may take any action the chairperson considers
reasonably necessary to ensure that he or she does so. In cases where a
person is seeking to enforce rights against the property of a protected
witness, the chairperson may inform the person about property owned by
the protected witness under his or her former identity.
The intention of the clause is to ensure that the interests of innocent third
parties are protected and not adversely affected by virtue of a protected
witness receiving protection and re-identification and then seeking to avoid
obligations or liabilities incurred under his or her former identity.
Clause 32 enables the chairperson to certify in writing what amount of
money has been paid to a person under the witness protection program.
This certified amount of money is not subject to confiscation or restraint or
for the payment of financial penalties under the Crimes (Confiscation) Act
1989.
Clause 33 provides that section 16 applies to approved authorities.
Approved authorities are defined in the dictionary in schedule 2 to the Bill.
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Witness Protection
The clause operates to enable an application to the authorising officer for
a new identity authority to be made by an approved authority in
circumstances where a person is included in a witness protection program
under a complementary witness protection law. For the purposes of
making an application for a new identity authority, a protected witness in a
witness protection program under a complementary witness protection law
is taken to be a protected witness under the Queensland witness protection
program, and the approved authority is taken to be the chairperson. A
complementary witness protection law is defined in the dictionary in
schedule 2 to the Bill.
Clause 34 extends the effect of clause 19 to a person who has been given
a new identity by the issue of a birth certificate under a complementary
witness protection law. The new identity of that person is taken to be their
actual identity for all purposes whilst they are in Queensland.
PART 4--MISCELLANEOUS
Clause 35 makes directions about what must be done to give effect to the
witness protection program. This includes the keeping and maintenance of
accurate registers of the actual and assumed particulars of persons who have
been given new identities under the witness protection program, and of the
provision of non-disclosure certificates. It is intended that these records will
form part of the records kept by the Criminal Justice Commission.
Clause 36 provides that it is an offence for a person to knowingly
disclose or record information or provide or allow access to information
about a protected witness or former protected witness, that would
compromise the security of that person or the integrity of the witness
protection program. The clause provides for circumstances where a
disclosure or recording of information will not offend against the provision.
The clause provides for a maximum penalty of 10 years imprisonment.
Clause 37 provides that it is an offence for a protected witness, former
protected witness or person who has been assessed for inclusion in the
witness protection program to make unauthorised disclosure of the fact that
he/she or another person had undergone assessment for inclusion on the
witness protection program; that he/she or another person signed a
protection agreement; the details of a protection agreement, or information
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Witness Protection
about the working of the witness protection division, its staff or the
chairperson.
The clause provides for a maximum penalty of 5 years imprisonment.
Clause 38 provides that the chairperson and certain other persons are not
required to produce any documents or divulge to a court, tribunal, hearing or
commission of inquiry, any information that has come to his/her notice in
carrying out functions under the Act. This applies except where a judge of
the District Court or Supreme Court otherwise orders or if the proceeding in
question relates to an offence against the Act.
However this does not prevent a member or officer of the commission
from producing documents or disclosing information under the approval of
the chairperson for the purposes of the relevant proceeding.
Clause 39 allows the issue of a Queensland identity document to a
protected witnesses included in a witness protection program conducted by
the Commonwealth or another State if the document is issued under an
arrangment under Clause 40.
Clause 40 provides that the chief executive officer of an approved
authority may make arrangements with the chairperson about matters
relating to the administration of a complementary witness protection law.
Approved authority is defined in the dictionary in schedule 2 to the Bill.
Such arrangements must include agreements on cost sharing with the
authority. They may also include the provision of information that would
enable the chairperson to decide whether the person should be included in
the Queensland witness protection program and what protection is
appropriate, as well as conferring powers on the chairperson under
complementary witness protection laws.
Clause 41 provides that the chief executive officer of an approved
authority may be authorised by regulation to exercise functions and powers
conferred on the chairperson under the Act (other than under clause 33 of
the Bill) for arrangements made under clause 40 or the corresponding
provision in a complementary witness protection law.
Clause 42 enables the relevant Queensland Minister to make an
arrangement with the Minister responsible for the administration of the
Witness Protection Act 1994 (C'th) about the issue of Commonwealth
identity documents such as passports.
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Witness Protection
Clause 43 applies where the chairperson is informed that a protected
witness, who has been provided with a new identity, or relocated is under
investigation or has been arrested or charged with a serious offence for
which the maximum penalty is more than one year's imprisonment. In
such cases the chairperson may release information to an approved
authority, or the commissioner of police or the crime commissioner about
the protected witness's new identity, location, criminal history and
fingerprints. In addition, the chairperson may also allow officers from the
approved authority to interview officers of the witness protection division.
A serious offence is defined in the clause.
The clause recognises that the fact of a protected witness's relocation or
change in identity should not interfere with the course of justice by
obstructing any investigation of alleged criminal conduct by that person.
Clause 44 provides that a person is not liable to civil proceedings for acts
performed in carrying out a function under the Act.
The intention of this clause is to protect those who perform certain
functions as set out in the Act. For example the clause is intended to protect
officers of the commission and the commission itself from liability in
respect of third party interests or rights affected as a result of an action taken
under the program, for instance, the hindrance of a civil action by reason of
the re-identification of a protected witness.
The clause also provides that, except in cases involving officers from the
Commonwealth or another state, where the liability can not attach to a
person by reason of subsection (1) of the clause, the liability will attach to
the State.
Clause 45 limits access to the registers required to be kept under the Act
to the chairperson, a commissioner under the Criminal Justice Act 1989, the
director of the witness protection division, an officer of the witness
protection division and the Parliamentary Commissioner under the Criminal
Justice Act 1989.
Clause 46 provides that where the chairperson is required to provide
notice to a person under the Act, then he may do so in an appropriate
manner. The Bill specifically does not provide for notice in writing to be
sent to the person as this carries a risk of discovery of details about the
person or their involvement in a witness protection program. An example
is provided in the clause of an appropriate manner in which the chairperson
may notify a witness. The clause also provides for those persons to whom
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Witness Protection
a notice must be given on behalf of a minor or a person with impaired
capacity.
Clause 47 makes special provision for the signing of notices,
agreements, acknowledgments or other documents under the Act
concerning minors or people with impaired capacity.
Clause 48 permits the chairperson to delegate his/her powers under the
Act to an officer of the witness protection division who is appropriately
qualified. The chairperson cannot delegate his/her most significant decision
making powers, that is, the power to offer protection, the power to terminate
protection (except where the termination is by agreement with the witness or
the witness has given written notice of their intention to leave the witness
protection program), or the power to give a non-disclosure certificate.
Clause 49 allows the chairperson to approve forms for use under the Act.
Clause 50 provides that proceedings for an offence against the Act may
be taken in a summary way under the Justices Act 1886.
Clause 51 allows the Governor in Council to make regulations under the
Act.
Clause 52 states that the Acts mentioned in schedule 1 to the Bill are
amended.
PART 5--TRANSITIONAL
Clause 53 states that participants on the witness protection program
operated under the Criminal Justice Act 1989 are taken to be in the witness
protection program under the Act upon its commencement.
Clause 54 states that a document purporting to be a protection agreement
and entered into under the witness protection program operated under the
Criminal Justice Act 1989, is taken to be a protection agreement entered into
under the Act. If such an agreement does not include a mandatory condition
about termination as described in clause 8(1) then it is taken to include that
condition.
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Witness Protection
SCHEDULE 1
ACTS AMENDED
Schedule 1 sets out the Acts to be amended by the Bill.
The Bill exempts the application of the Freedom of Information Act 1992
and the Judicial Review Act 1991.
SCHEDULE 2
DICTIONARY
Schedule 2 contains the dictionary to be used in defining certain words
and phrases in this Act.
© State of Queensland 2000