Witness Protection Act 1995 (NSW)

Witness Protection Act 1995 No 87 An Act to make provision to protect the safety and welfare of witnesses; to amend the Criminal Procedure Act 1986; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Witness Protection Act 1995. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Definitions (1) In this Act— approved authority means— (a) the Commissioner of the Australian Federal Police, or (b) a Commissioner (however designated) of the police force of another State or a Territory, or (c) the Chief Executive Officer of the Australian Crime Commission, or (d) the Commissioner of the New South Wales Crime Commission, or (e) an authority or body of the Commonwealth, another State or a Territory that— (i) is authorised to conduct inquiries or investigations in relation to conduct that constitutes, or is alleged to constitute, criminal conduct, misconduct or corruption, and (ii) is declared by the Minister by order published in the Gazette to be an approved authority for the purposes of this Act. Commission means the Law Enforcement Conduct Commission. communications includes any transmission of information. complementary witness protection law means a law of the Commonwealth, another State or a Territory that— (a) makes provision for the protection of witnesses, and (b) is declared by the Minister by order published in the Gazette to be a complementary witness protection law. Editorial note. For declarations under this definition see the Historical notes at the end of this Act. designated authority for a complementary witness protection law means the approved authority exercising functions under that law that is declared by the Minister by order published in the Gazette to be the designated authority for that law. Editorial note. For declarations under this definition see the Historical notes at the end of this Act. designated position means a position of a member of the NSW Police Force that has been declared in writing by the Commissioner of Police to be a designated position for the purposes of this Act. document includes the following— (a) a biometric record, (b) an educational record, (c) a legal record, (d) a medical record. exercise a function includes perform a duty. former participant, for Part 3—see section 13A. function includes a power, authority or duty. Inspector has the same meaning as in the Law Enforcement Conduct Commission Act 2016. participant means a witness who is included in a witness protection program, whether temporarily or otherwise. register of births means the register maintained under the Births, Deaths and Marriages Registration Act 1995 in which births are registered. register of deaths means the register maintained under the Births, Deaths and Marriages Registration Act 1995 in which deaths are registered. register of marriages means the register maintained under the Births, Deaths and Marriages Registration Act 1995 in which marriages are registered. witness has the meaning given by section 4. witness protection order means an order of the Supreme Court referred to in section 15. witness protection program means a witness protection program established and maintained under section 5. (2) Notes in the text of this Act do not form part of this Act. 4 Meaning of "witness" (1) For the purposes of this Act, a witness is— (a) a person who has given, or agreed to give, evidence on behalf of the Crown in— (i) proceedings for an offence, or (ia) proceedings relating to an application for a serious crime prevention order under the Crimes (Serious Crime Prevention Orders) Act 2016, or (ii) hearings or proceedings before an authority that is declared by the Minister by order published in the Gazette to be an authority to which this paragraph applies, or (b) 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 New South Wales, the Commonwealth, another State or a Territory, or (c) a person who has made a statement to the Commissioner of Police, another member of the NSW Police Force or an approved authority in relation to an offence against a law of New South Wales, the Commonwealth, another State or a Territory, or (d) a person who, for any other reason, may require protection or other assistance under this Act. (2) A person is taken to be a witness for the purposes of this Act if the person, because of the person's association with a person to whom subsection (1) applies, may require protection or other assistance under this Act. Part 2 Witness protection program 5 Witness protection program (1) The Commissioner of Police, through the establishment and maintenance of a witness protection program, is to take such action as the Commissioner thinks necessary and reasonable to protect the safety and welfare of a participant. (2) That action may include the following— (a) making arrangements necessary— (i) to allow the participant to establish a new identity, or (ii) otherwise to protect the participant, (b) relocating the participant, (c) providing accommodation for the participant, (d) providing transport for the property of the participant, (e) providing reasonable financial assistance to the participant, (e1) providing to the participant services in the nature of counselling (such as psychological counselling and drug and alcohol counselling) and vocational training services, (f) (Repealed) (g) doing any other things that the Commissioner of Police considers necessary to ensure the safety of the participant. (3) That action may also include doing things as a result of functions conferred on the Commissioner of Police under a complementary witness protection law. 6 Inclusion in the witness protection program (1) The Commissioner of Police has the sole responsibility of deciding whether to include a witness in the witness protection program, including cases where an approved authority has requested that a witness be included in the program. (2) A witness may be included in the witness protection program only if— (a) the Commissioner of Police has decided that the witness be included, and (b) the witness agrees to be included, and (c) the witness signs a memorandum of understanding in accordance with section 8 or— (i) if the witness is under the age of 18—a parent or guardian of the witness signs the memorandum, or (ii) if the witness otherwise lacks legal capacity to sign the memorandum—a guardian or other person who is usually responsible for the care and control of the witness signs the memorandum. (3) If the Commissioner decides not to include a witness in the witness protection program, the Commissioner must inform the witness of the witness's rights under subsection (4). (4) A witness may appeal to the Commission within 3 days after being informed of a decision not to include the witness in the witness protection program. The Commission must determine the appeal within 7 days after the appeal is received. The Commission, in determining the appeal, may make any decision that could have been made by the Commissioner and the Commission's determination has effect according to its tenor. (5) Subsections (3) and (4) have effect despite subsections (1) and (2). (6) If— (a) a parent or guardian of a witness signs a memorandum of understanding because the witness was under the age of 18, and (b) the memorandum is still operating after the witness turns 18, the Commissioner of Police may require the witness to sign the memorandum. 7 Assessing witness for inclusion in witness protection program (1) The Commissioner of Police, in deciding whether to include a witness in the witness protection program, must have regard to— (a) the seriousness of the offence to which any relevant evidence or statement relates, and (b) the nature and importance of any relevant evidence or statement, and (c) the nature of the perceived danger to the witness, and (d) the nature of the witness's association with other witnesses being assessed for inclusion in the program, and (e) if a psychological or psychiatric examination or evaluation of the witness has been conducted to determine the witness's suitability for inclusion in the program—that examination or evaluation, and (f) whether there are viable alternative methods of protecting the witness, and (g) whether the witness has a criminal record, particularly in respect of crimes of violence, and whether that record indicates a risk to the public if the witness is included in the program, and may have regard to such other matters as the Commissioner of Police considers relevant. (2) The Commissioner of Police must not include a witness in the witness protection program if the Commissioner does not, in his or her opinion, have enough information to assess the matters referred to in this section in relation to the witness. 8 Memorandum of understanding (1) A memorandum of understanding is to— (a) set out the basis on which a participant is included in the witness protection program and details of the protection and assistance that are to be provided, and (b) contain a provision to the effect that protection and assistance under the program may be terminated if the participant deliberately breaches a term of the memorandum of understanding or a requirement or undertaking relating to the witness protection program. (2) A memorandum of understanding in relation to a participant may also contain provisions relating to any one or more of the following— (a) any outstanding legal obligations of the participant and how they are to be dealt with, (b) any legal obligations that the participant may or may not enter into, (c) the surrender and issue of passports, (c1) the taking, provision and retention of photographs of the participant, (c2) the recording or monitoring of the participant's communications with another person, other than a person referred to in section 9A(2)(a)–(d), (d) the issue of any documents relating to the new identity of the participant, (e) the prohibition of the participant from engaging in specified activities, (f) marriage, family maintenance, taxation, welfare or other social or domestic obligations or relationships, (g) any other obligations of the participant, (h) consequences of the participant failing to comply with the provisions of the memorandum of understanding, (i) any other matter for which it may be necessary or convenient to make provision in the circumstances of the case. (3) A memorandum of understanding must contain a statement advising the participant of his or her right to complain to the Commission about the conduct of the Commissioner of Police or another member of the NSW Police Force in relation to the matters dealt with in the memorandum. (4) A memorandum of understanding must be signed by or on behalf of the witness in the presence of a member of the NSW Police Force who holds or occupies a designated position. (5) A witness becomes included in the witness protection program when the Commissioner of Police signs the memorandum of understanding. (6) The Commissioner of Police must, as soon as practicable after signing a memorandum of understanding, notify the relevant participant that it has been signed. 9 Variation of memorandum of understanding A memorandum of understanding may be varied with the consent of the participant and the Commissioner of Police. 9A Recording and monitoring of communications (1) This section applies if a memorandum of understanding in relation to a participant contains a provision of the kind referred to in section 8(2)(c2). (2) The Commissioner of Police may record or monitor the participant's communications with another person, other than the following persons— (a) the participant's legal representative, (b) a member of staff of the Commission, (c) the Inspector, (d) a member of the NSW Police Force who is exercising functions in relation to police misconduct investigations. (3) The following must not be used in legal proceedings against a person who is not the participant— (a) a recording obtained in accordance with the memorandum of understanding, (b) a transcript or report of the recording. (4) Subsection (2) does not authorise the Commissioner of Police to intercept communications passing over a telecommunications system. 10 Temporary protection pending full assessment or termination (1) The Commissioner of Police may include in the witness protection program on a temporary basis a witness who, in the Commissioner's opinion, is in urgent need of protection. (2) The Commissioner of Police may require an interim memorandum of understanding to be signed by or on behalf of the witness. (3) Sections 6 and 7 do not prevent the exercise of any function under this section but, in so far as those sections have not been complied with before the witness is included in the witness protection program, they must be complied with as soon as practicable after the witness's inclusion. 11 Cessation of protection and assistance (1) Protection and assistance provided under the witness protection program to a participant must be terminated by the Commissioner of Police if the participant requests in writing that it be terminated. (2) Protection and assistance provided under the witness protection program may be terminated by the Commissioner of Police if— (a) the participant deliberately breaches a term of the memorandum of understanding or a requirement or undertaking relating to the witness protection program, or (b) the participant's conduct or threatened conduct is, in the opinion of the Commissioner, likely to threaten the security or compromise the integrity of the witness protection program, or (c) the circumstances that gave rise to the need for protection and assistance for the participant cease to exist, or (d) the Commissioner is satisfied— (i) the participant has been sentenced to full-time detention after the participant's inclusion in the witness protection program, and (ii) the sentence limits the Commissioner's ability to provide adequate protection to the participant, and the Commissioner is of the opinion that, in the circumstances of the case, the protection and assistance should be terminated. (3) In this section— full-time detention has the same meaning as in the Crimes (Sentencing Procedure) Act 1999. 11A Suspension of protection and assistance Protection and assistance provided under the witness protection program to a participant may be suspended by the Commissioner of Police for a reasonable period determined by the Commissioner if the Commissioner is satisfied that the participant has done or intends to do something that limits the ability of the Commissioner to provide adequate protection to the person. Note. For example, the participant may have done something that results in him or her being in custody, or may intend to travel to a place despite a warning from the Commissioner not to go there because of the risk of harm to the participant. 12 Notice of involuntary termination or suspension and application for review (1) If the Commissioner of Police makes a decision under section 11 (2) or 11A that protection and assistance provided under the witness protection program to a participant be terminated or suspended, the Commissioner must— (a) take reasonable steps to notify the participant of the decision, and (b) notify the relevant approved authority (if any) of the decision. (2) A participant who receives such a notification may, within 14 days (in the case of termination) or 2 days (in the case of suspension) after receiving the notice, apply in writing to the Commissioner for a review of the decision. (3) If an application is made, the Commissioner— (a) must review the decision, and confirm, reverse or vary it, and (b) before making that decision, must give the participant a reasonable opportunity to state his or her case, and (c) after making that decision, must inform the participant in writing of the decision. (4) If the Commissioner confirms a decision to terminate or suspend protection and assistance provided under the witness protection program to a participant, the Commissioner must inform the participant of the participant's rights under subsection (5). (5) A participant may appeal to the Commission within 3 days after being informed of the confirmation of a decision to terminate or suspend protection and assistance. The Commission must determine the appeal within 7 days after the appeal is received. The Commission, in determining the appeal, may make any decision that could have been made by the Commissioner and the Commission's determination has effect according to its tenor. 13 Date on which involuntary termination or suspension takes effect (1) A decision of the Commissioner of Police under section 11 (2) or 11A that protection and assistance provided under the witness protection program to a participant be terminated or suspended— (a) if the participant's location is not known and the Commissioner has taken reasonable steps to notify the participant of the decision but has been unable to do so—takes effect at the end of the appropriate review period after those steps were commenced, or (b) if the participant does not apply for a review of the decision in accordance with section 12 (2)—takes effect at the end of the appropriate review period after the participant receives the notification, or (c) if the participant applies for a review of the decision in accordance with section 12 (2) and the Commissioner notifies the participant that the decision has been reversed—has no effect, or (d) if the participant applies for a review of the decision in accordance with section 12 (2) and the Commissioner notifies the participant that the decision has been varied—takes effect on the day specified by the Commissioner, or (e) if the participant applies for a review of the decision in accordance with section 12 (2), the Commissioner notifies the participant that the decision has been confirmed and the participant does not appeal to the Commission under section 12 (5)—takes effect on the expiration of 3 days after the Commissioner notifies the participant of the decision on the review, or (f) if the participant appeals to the Commission under section 12 (5)—has no effect. (2) A decision of the Commission under section 12 (5) that protection and assistance provided under the witness protection program to a participant be terminated or suspended takes effect when the Commission notifies the participant of the decision. (3) If the Commission has been unable to notify the participant of the decision despite taking reasonable steps to do so, the decision of the Commission takes effect when the Commission notifies the Commissioner of Police that the Commission has been unable to notify the participant of the decision. (4) In this section— appropriate review period means— (a) if the decision is to terminate protection and assistance—14 days, or (b) if the decision is to suspend protection and assistance—2 days. Part 3 Protecting participants from identification 13A Definition In this part— former participant means a person— (a) provided with a new identity under the witness protection program, and (b) for whom protection and assistance under the witness protection program have been terminated. 14 Identifying documents Without limiting section 5, the Commissioner of Police may apply for any documents necessary— (a) to allow a participant to establish a new identity, or (b) otherwise to protect the participant, or (c) to restore a participant's previous identity. 15 Application for court order (1) Application may be made to the Supreme Court for a court order authorising a specified person or a person of a specified class or description of persons— (a) to make a new entry in the register of births or the register of marriages in respect of a witness, or (a1) to make a new entry in the register of deaths in respect of a witness or a relative (by blood or marriage) of a witness, or (b) to issue in the witness's new identity a document of a kind previously issued to the witness. (1A) Such an application may only be made by— (a) the Commissioner of Police, or (b) the designated authority for a complementary witness protection law. (2) The applicant must provide such evidence as the Supreme Court may require to satisfy itself as to the matters specified in section 17. 16 Court proceedings under this Part to be closed to public All business of the Supreme Court under this Part is to be conducted in the absence of the public. 17 Power of Supreme Court to make order The Supreme Court may make a witness protection order if it is satisfied that— (a) the person named in the application as a participant— (i) was a witness to or has knowledge of an indictable offence and is or has been a witness in criminal proceedings relating to the indictable offence, or (ii) is a person who, because of the person's association with a person to whom subparagraph (i) applies, may require protection or other assistance under this Act or (in the case of an order applied for by the designated authority for a complementary witness protection law) under that law, and (b) the life or safety of the person may be endangered as a result of the person being a witness, and (c) the person has entered into— (i) a memorandum of understanding under section 8, or (ii) an interim memorandum of understanding under sections 8 and 10, or (iii) for an order relating to an application made by the designated authority for a complementary witness protection law—a memorandum of understanding under the corresponding provision of that law, and (d) the person is likely to comply with the memorandum of understanding. 18 Effect of witness protection order (1) On the making of a witness protection order of the kind referred to in section 15 (1) (a) or (a1)— (a) a person authorised to do so by the order may make any entries in a register of births, deaths or marriages that are necessary to give effect to the order, and (b) the Registrar of Births, Deaths and Marriages is required to give the person access to the relevant register and to give such assistance as the person may require, and (c) the Commissioner of Police or (in the case of an order applied for by the designated authority for a complementary witness protection law) that designated authority must maintain records showing details of the original birth, death or marriage of each person in respect of whom an entry is made under paragraph (a). (2) A witness protection order may be used to change the identity of the participant to whom the order relates— (a) if the participant consents, and (b) not more than twice. 19 Effect of entries made under this Act in register of births, deaths or marriages (1) An entry made under this Act in a register of births, deaths or marriages has effect as if it were a valid entry made under the Births, Deaths and Marriages Registration Act 1995. (1A) An applicant may apply to the Supreme Court for an order directing the Registrar of Births, Deaths and Marriages to cancel an entry made under this Act in a register of births, deaths or marriages. (2) An entry made under this Act in a register of births, deaths or marriages can only be cancelled by the Registrar of Births, Deaths and Marriages if the Supreme Court, after being satisfied that the witness is no longer included in the relevant witness protection program, has made a court order referred to in subsection (1A). (3) In this section— applicant means— (a) the Commissioner of Police, or (b) the designated authority for a complementary witness protection law. 20 Special provision in case of marriage of participant A participant who has been provided with a new identity under the witness protection program must not marry unless— (a) the participant has given to the Commissioner of Police or an approved authority evidence that satisfies the Commissioner or the approved authority of the identity of the participant and that the participant is of marriageable age, and (b) if the participant has been married previously—the participant has given to the Commissioner or an approved authority evidence that satisfies the Commissioner or the approved authority that the person's previous spouse has died or that the participant is divorced, and (c) the participant has given to the Commissioner or an approved authority a statutory declaration to the effect that there is no legal impediment to the marriage and the Commissioner or the approved authority is not aware of any legal impediment to the marriage. Maximum penalty—5 penalty units or imprisonment for 6 months. 21 Restoration of previous identity (1) The Commissioner of Police may, if the Commissioner considers it appropriate in the circumstances, decide to take action to restore a former participant's previous identity. (2) The Commissioner of Police must take reasonable steps to notify the former participant of a decision under subsection (1). (3) If the Commissioner of Police proposes to take action to restore the former participant's previous identity, the former participant may apply in writing to the Commissioner for a review of the decision. (4) If an application is made, the Commissioner of Police— (a) must review the decision and confirm, reverse or vary it, and (b) before making that decision, must give the participant a reasonable opportunity to state his or her case, and (c) after making that decision, must inform the participant in writing of the decision. (5) If the Commissioner of Police— (a) takes action under this section to restore the previous identity of a person who was a participant, and (b) the Commissioner notifies the former participant in writing that he or she is required to return to the Commissioner all documents provided to the former participant that relate to the new identity provided under the witness protection program, the former participant must not, without reasonable excuse, refuse or fail to return those documents to the Commissioner within 14 days after receiving the notice. Maximum penalty (subsection (5)): 10 penalty units. 22 Offences in relation to documents While an entry made under this Act in the register of births or the register of marriages continues in force, a person in respect of whom the entry is made must not use or obtain any document issued by the Registrar of Births, Deaths and Marriages that is based on the previous entry. Maximum penalty—10 penalty units. 23 Information not to be disclosed (1) A person must not, either directly or indirectly, record or disclose any information relating to the making of an entry under this Act in a register of births, deaths or marriages, unless it is necessary to do so— (a) for the purposes of this Act or a complementary witness protection law, or (b) for the purposes of an investigation by the Commission or the Inspector, or (c) to comply with an order of the Supreme Court. Maximum penalty—imprisonment for 10 years. (2) Despite subsection (1), the Commissioner of Police may disclose the previous identity of a participant or former participant for the purpose of obtaining documents relating to the new identity of the participant or former participant. 24 Non-disclosure of previous identity of participant (1) If— (a) a participant who has been provided with a new identity under the witness protection program would, apart from this section, be required by or under a law of New South Wales to disclose his or her previous identity for a particular purpose, and (b) the Commissioner of Police has given the participant permission, in the form prescribed by the regulations, not to disclose his or her previous identity for that purpose, the participant is not required to disclose his or her previous identity to any person for that purpose. (2) If a participant has been given permission under subsection (1) not to disclose his or her previous identity for a particular purpose, it is lawful for the participant, in any proceedings or for any purpose, under or in relation to the relevant law of New South Wales to claim that his or her previous identity is his or her only identity. (3) It is the duty of each person who is or has been associated with the administration of the witness protection program and who has obtained access to information or a document relevant to the witness protection program not to disclose that information or publish that document except as authorised by the Commissioner of Police. (4) If, under a complementary witness protection law of the Commonwealth, another State or a Territory, it is lawful for a participant not to disclose his or her previous identity for a purpose approved by the Commissioner of Police, the participant is not required to disclose his or her previous identity to another person for that purpose. (5) In addition to prescribing a form for the purposes of a permission under subsection (1), the regulations may prescribe a form for the purposes of a similar permission of the Commissioner of Police under a complementary witness protection law of the Commonwealth, another State or a Territory. (6) In this section— participant includes a former participant. 25 (Repealed) 26 Identity of participant not to be disclosed in legal proceedings (1) If, in any proceedings in a court, a tribunal or a Royal Commission or other commission of inquiry, the identity of a participant is in issue or may be disclosed, the court, tribunal or commission must, unless it considers that the interests of justice require otherwise— (a) hold that part of the proceedings that relates to the identity of the participant in private, and (b) make such order relating to the suppression of publication of evidence given before the court, tribunal or commission as, in its opinion, will ensure that the identity of the participant is not disclosed. (2) If in any proceedings in a court, a tribunal or a Royal Commission or other commission of inquiry, a participant who has been provided with a new identity under the witness protection program is giving evidence, the court, tribunal or commission may hold that part of the proceedings in the absence of the public. (3) This section does not limit the operation of Part 3A (Proceedings involving persons with new identity). 27 Documentation restrictions The Commissioner of Police must