VersionNo. 035
Witness Protection Act 1991
No. 15 of 1991
Versionincorporating amendments as at
7 June 2012
table of provisions
SectionPage
1
SectionPage
1Purpose
2Commencement
3Definitions
3AVictorian witness protection program
3BInclusion in the Victorian witness protection program
3CSpecial commercial arrangements by Chief Commissioner
4Authority to make new entry in the register of births or register
of marriages
5Memorandum of understanding
6Application for court order
7Power of Supreme Court to make order
8Effect of authorizing court order
9Effect of entries made under this Act
10Information not to be disclosed
11Offences in relation to documents
12Immunity from proceedings
13Court proceedings under this Act to be closed
14Certain provisions of Births, Deaths and Marriages Registration Act 1996 excluded
15Special provision in case of marriage
16Cessation of protection and assistance
17Notice of involuntary termination, review and appeal
18When does involuntary termination take effect?
19Restoration of former identity
20When does a decision to restore a person's former identity take effect?
21Arrangements with approved authorities
21AApproved authorities can only act under this Act if
arrangements with Chief Commissioner are in place
22Authorisation of approved authorities
23Provision of information to approved authorities
24Freedom of Information Act 1982
24ADouble jeopardy
25Supreme Court—limitation of jurisdiction
26Transitional provision
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ENDNOTES
1. General Information
2. Table of Amendments
3. Explanatory Details
1
VersionNo. 035
Witness Protection Act 1991
No. 15 of 1991
Versionincorporating amendments as at
7 June 2012
1
Witness Protection Act 1991
No. 15 of 1991
The Parliament of Victoria enacts as follows:
S. 1
amended by No. 31/2000 s.4.
1Purpose
The purpose of this Act is to facilitate the security of persons who are, or have been, witnesses in criminal proceedings in Victoria or elsewhere in Australia.
2Commencement
This Act comes into operation on the day on which it receives the Royal Assent.
S. 3 amendedby No. 72/2001 s.3(Sch. item13.2) (ILA s.39B(1)).
3Definitions
(1)In this Act—
S. 3(1) def. of approved authority inserted by No. 58/1996 s.4(1), amended by Nos 18/2002 s.25(1)(a), 52/2003 s.52(Sch.1 item14(1)(a)).
approved authority means—
(a)the Commissioner of the Australian Federal Police;
(b)a Commissioner (however designated) of the police force of another State;
(c)the Chief Executive Officer of the Australian Crime Commission;
(d)an authority or body of the Commonwealth or another State 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 notice published in the Government Gazette, to be an approved authority for the purposes of this Act;
authorizing court order means a court order authorizing the making of an entry under this Act;
S. 3(1) def. of complement-ary witness protection law insertedby No. 58/1996 s.4(1).
complementary witness protectionlaw means a law of the Commonwealth or another State that—
(a)makes provision for the protection of witnesses; and
(b)is declared by the Minister, by notice published in the Government Gazette, to be a complementary witness protection law;
s. 3
S. 3(1) def. of Deputy Ombudsman inserted by No. 58/1996 s.4(1), substitutedas def. of Director by No. 63/2004 s.33(a), amended by No. 34/2008 s.143(Sch. 2 item 15).
Directormeans the Director, Police Integrity under section 7 of the Police Integrity Act 2008;
S. 3(1) def. of domestic partner inserted by No. 72/2001 s.3(Sch. item13.1), substitutedby No.12/2008 s.73(1)(Sch.1 item67.1).
domestic partnerof a personmeans—
s. 3
(a)a person who is in a registered relationship with the person; or
(b)an adult person to whom the person is not married but with whom the person is in a relationship as a couple where one or each of them provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not include a person who provides domestic support and personal care to the person—
(i)for fee or reward; or
(ii)on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation);
S. 3(1) def. of member of the family inserted by No. 72/2001 s.3(Sch. item13.1).
member of the family of a witness includes—
(a)a spouse or domestic partner, parent or sibling of the witness; or
(b)a child of the witness or of the witness's spouse or domestic partner;
S. 3(1) def. of officer of an approved authority inserted by No. 31/2000 s.5, amendedby Nos 18/2002 s.25(1)(b), 52/2003 s.52(Sch.1 item14(1)(b)
(c)).
officer of an approved authority means—
s. 3
(a)in relation to an approved authority within the meaning of paragraph (a) or(b) of the definition of approved authority—a person who is a member of the body of which the approved authority is Commissioner (however designated);
(ab)in relation to an approved authority within the meaning of paragraph (c) of the definition of approved authority—a person who is a member of the staff of the Australian Crime Commission;
(b)in relation to an approved authority within the meaning of paragraph (d) of the definition of approved authority—a person who is a member or an officer of the approved authority;
S. 3(1) def. of Ombudsman
inserted by No. 58/1996 s.4(1).
Ombudsman means the Ombudsman appointed under section 3 of the Ombudsman Act 1973;
S. 3(1) def. of participant inserted by No. 31/2000 s.5.
participant means a person who is included in the Victorian witness protection program;
S. 3(1) def. of recognised participant inserted by No. 31/2000 s.5.
recognised participant means a person who is included in a witness protection program established under a complementary witness protection law, but who is not included in the Victorian witness protection program;
S. 3(1) def. of register of births amended by No. 43/1996
s. 65(Sch. item 14.1).
register of births means the register of births in the Register maintained under Part 7 of the Births, Deaths and Marriages Registration Act 1996;
s. 3
S. 3(1) def. of register of marriages inserted by No. 58/1996 s.4(1), amended by No. 58/1996
s. 12.
register of marriages means the register of marriages in the Register maintained under Part 7 of the Births, Deaths and Marriages Registration Act 1996;
S. 3(1) def. of Registrar amended by No. 43/1996
s. 65(Sch. item 14.2).
Registrar means the Registrar of Births, Deaths and Marriages;
S. 3(1) def. of spouse inserted by No. 72/2001 s.3(Sch. item13.1).
spouse of a person means a person to whom the person is married;
S. 3(1) def. of State insertedby No. 58/1996 s.4(1).
State includes Territory;
S. 3(1) def. of Victorian witness protection program inserted by No. 58/1996 s.4(1).
Victorian witness protection program means the program established and maintained by the Chief Commissioner of Police under section3A;
S. 3(1) def. of witness substituted by No. 58/1996 s.4(2).
witness means—
(a)a person who has given, or agreed to give, evidence on behalf of the Crown in—
(i)proceedings for an offence; or
s. 3
(ii)hearings or proceedings before an authority that is declared by the Minister, by notice published in the Government Gazette, to be an authority to which this paragraph applies; or
s. 3
(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 Victoria, the Commonwealth or another State; or
(c)a person who has made a statement to the Chief Commissioner of Police, another member of the police force or an approved authority in relation to an offence against a law of Victoria, the Commonwealth or another State; or
(d)a person who, for any other reason, may require protection or other assistance under this Act.
S. 3(2) inserted by No. 72/2001 s.3(Sch. item13.2), substitutedby No.12/2008 s.73(1)(Sch.1 item67.2).
(2)For thepurposes of the definition ofdomestic partnerin subsection(1)—
(a)registered relationship has the same meaning as in the Relationships Act 2008; and
(b)in determining whether persons who are not in a registered relationship are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case; and
(c)a person is not a domestic partner of another person only because they are co-tenants.
S. 3A
inserted by No. 58/1996 s.5.
3AVictorian witness protection program
s. 3A
(1)The Chief Commissioner of Police, through the establishment and maintenance of a Victorian witness protection program, may take such action as he or she thinks necessary and reasonable to protect the safety and welfare of a witness or a member of the family of a witness.
(2)That action may include—
(a)applying for any document necessary—
(i)to allow the witness or family member to establish a new identity; or
(ii)otherwise to protect the witness or family member;
(b)relocating the witness or family member;
(c)providing accommodation for the witness or family member;
(d)providing transport for the property of the witness or family member;
(e)doing any other things that the Chief Commissioner of Police considers necessary to ensure the safety of the witness or family member.
(3)The Chief Commissioner of Police must not obtain documentation for a witness or family member that represents that the witness or family member—
(a)has a qualification that he or she does not have; or
(b)is entitled to a benefit that he or she is not entitled to.
S. 3B
inserted by No. 58/1996 s.5.
3BInclusion in the Victorian witness protection program
s. 3B
(1)The Chief Commissioner of Police has the sole responsibility of deciding whether to include a witness in the Victorian 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 Victorian witness protection program only if—
(a)the Chief Commissioner has decided that the witness be included; and
(b)the witness agrees to be included; and
(c)the Chief Commissioner enters into a memorandum of understanding with the witness in accordance with section 5.
S. 3C
inserted by No. 58/1996 s.5.
3CSpecial commercial arrangements by Chief Commissioner
The Chief Commissioner of Police may make commercial arrangements with a person under which a witness or a member of the family of a witness is able to obtain a benefit under a contract or arrangement without revealing his or her former identity.
4Authority to make new entry in the register of births or register of marriages
S. 4(1) amended by Nos 58/1996 s.6, 31/2000 s.6.
(1)A member of the police force or an officer of an approved authority authorized to do so under an authorizing court order may make a new entry in the register of births or register of marriages for the purposes of this Act.
S. 4(2) amended by No. 43/1996
s. 65(Sch. item 14.3).
(2)Section 53 of the Births, Deaths and Marriages Registration Act 1996 does not apply in respect of any statement or entry made for the purposes of this Act.
5Memorandum of understanding
s. 5
S. 5(1) repealed by No. 31/2000 s.7(a).
*****
S. 5(1A) inserted by No. 58/1996 s.7(1), amended by No. 31/2000 s.7(b).
(1A)For the purposes of section 3B(2)(c), a memorandum of understanding between the Chief Commissioner of Police and a witness must—
(a)set out the basis on which the witness is included in the Victorian 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 witness breaches a term of the memorandum of understanding.
(2)A memorandum of understanding may contain provisions relating to—
(a)any outstanding legal obligations of the witness and how they are to be dealt with; and
(b)any legal obligations that the witness may or may not enter into; and
(c)the surrender and issue of passports; and
(d)the issue of any documents relating to the new identity of the witness; and
(e)the prohibition of the witness from engaging in specified activities; and
(f)marriage, family maintenance, taxation, welfare or other social or domestic obligations or relationships; and
(g)any other obligations of the witness; and
S. 5(2)(h) repealed by No. 58/1996 s.7(2)(a).
*****
s. 5
S. 5(2)(i) amended by No. 31/2000 s.7(c).
(i)if a new identity is to be extended to any members of the family of the witness, provisions relating to paragraphs (a) to (g) in relation to each member of the family to the extent that such provisions are necessary; and
S. 5(2)(j) substituted by No. 58/1996 s.7(2)(b).
(j)any other matter for which it may be necessary or convenient to make provision.
S. 5(3) inserted by No. 58/1996 s.7(3), amendedby No. 63/2004 s.33(b).
(3)A memorandum of understanding must contain a statement advising the witness of his or her right to complain to the Director about the conduct of the Chief Commissioner of Police or another member of the police force in relation to the matters dealt with in the memorandum.
S. 5(4) inserted by No. 58/1996 s.7(3).
(4)A memorandum of understanding must be signed—
(a)by the witness; or
(b)if the witness is under the age of 18, by a parent or guardian of the witness; or
(c)if the witness otherwise lacks legal capacity to sign, by a guardian or other legal personal representative of the witness.
S. 5(5) inserted by No. 58/1996 s.7(3).
(5)If—
(a)a parent or guardian of a witness has signed 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 Chief Commissioner of Police may require the witness to sign the memorandum.
6Application for court order
s. 6
S. 6(1) amended by Nos 58/1996 s.8(1)(a), 31/2000 s.8(1).
(1)The Chief Commissioner of Police may apply to the Supreme Court for a court order authorizing a nominated member or members of the police force to make a new entry in the register of births or register of marriages in respect of a participant or a participant and specified members of the family of the participant.
S. 6(1A) inserted by No. 31/2000 s.8(2).
(1A)An approved authority may apply to the Supreme Court for a court order authorizing a nominated officer or officers of the approved authority to make a new entry in the register of births or register of marriages in respect of a recognised participant or a recognised participant and specified members of the family of the recognised participant.
S. 6(2) amended by No. 31/2000 s.8(3).
(2)The Chief Commissioner of Police or an approved authority must provide such evidence as the Supreme Court may require so as to satisfy itself as to the matters specified in section 7.
7Power of Supreme Court to make order
The Supreme Court may make an authorizing court order if it is satisfied that—
S. 7(a) substituted by No. 31/2000 s.9(a).
(a)the person named in the application as a witness is a participant or a recognised participant; and
(b)the life or safety of the person or of a member of his or her family may be endangered as a result of the person being a witness; and
S. 7(c) repealed by No. 31/2000 s.9(b).
*****
S. 7(d) amended by Nos 31/2000 s.9(c), 11/2002 s.3(Sch. 1 item68).
(d)the person is likely to comply with the memorandum of understanding that the person has entered into under section 3B(2)(c) or under the provisions of a complementary witness protection law.
8Effect of authorizing court order
On the making of an authorizing court order—
S. 8(a) amended by Nos 58/1996 s.8(1)(b)(i), 31/2000 s.10(a).
(a)the member or members of the police force or officer or officers of an approved authority nominated in the authorizing court order may make any entries in the register of births or register of marriages that are necessary to give effect to the order; and
S. 8(b) amended by No. 58/1996 s.8(1)(b)(i), substituted by No. 31/2000 s.10(b).
(b)the Registrar is required to give the member or members of the police force or officer or officers of an approved authority nominated in the authorizing court order access to the register of births or register of marriages and to give such assistance as they may require; and
S. 8(c) amended by Nos 58/1996 s.8(1)(b)(ii), 31/2000 s.10(c).
(c)the Chief Commissioner of Police must maintain records showing details of the original birth entry or original marriage entry of each person in respect of whom an entry is made under paragraph (a) by a member or members of the police force.
9Effect of entries made under this Act
s. 8
S. 9(1) amended by Nos 58/1996 s.8(1)(c), 43/1996
s. 65(Sch. item 14.4).
(1)An entry made in the register of births or register of marriages under this Act has effect as if it were a valid entry made under the Births, Deaths and Marriages Registration Act 1996.
S. 9(2) substituted by Nos 58/1996 s.8(2), 31/2000 s.11.
(2)An entry made in the register of births or register of marriages under this Act can be cancelled by the Registrar only if—
(a)in the case of a witness who was a participant—the Supreme Court makes a court order on the application of the Chief Commissioner of Police directing that the entry be cancelled;
(b)in the case of a witness who was a recognised participant—the Supreme Court makes a court order on the application of an approved authority directing that the entry be cancelled.
S. 9(3) inserted by No. 31/2000 s.11.
(3)The Supreme Court may make an order under subsection (2) only if it is satisfied that the witness is no longer a participant or a recognised participant, as the case requires.
S. 10 substituted by No. 58/1996 s.9.
10Information not to be disclosed
s. 10
S. 10(1) amended by No. 31/2000 s.12(1)(a).
(1)A person must not, either directly or indirectly, make a record of, disclose, or communicate to another person any information relating to the making of an entry in the register of births or the register of marriages under this Act, unless it is necessary to do so—
(a)for the purposes of this Act; or
S. 10(1)(b) amendedby No. 63/2004 s.33(b).
(b)for the purposes of an investigation by the Director; or
(c)to comply with an order of the Supreme Court.
Penalty:Level 5 Imprisonment (Maximum 10years)
S. 10(2) amended by No. 31/2000 s.12(1)(b).
(2)Despite subsection (1), the Chief Commissioner of Police or an approved authority or an officer of an approved authority may disclose the former identity of a witness or a member of the family of a witness for the purpose of obtaining documents relating to the new identity of the witness or family member.
S. 10(3) amended by No. 31/2000 s.12(1) (c)(i)(iii).
(3)Subject to subsection (4), a person who is or has been a witness or a member of the family of a witness must not, either directly or indirectly, disclose or communicate to another person, in Victoria or elsewhere—
(a)the fact that he or she or a member of his or her family has entered a memorandum of understanding under section 5; or
(b)details of the memorandum of understanding; or
S. 10(3)(c) amended by No. 31/2000 s.12(1)(c)(ii).
(c)information relating to anything done by the Chief Commissioner of Police or another member of the police force or an approved authority or an officer of an approved authority under this Act; or
S. 10(3)(d) amended by No. 31/2000 s.12(1)(c)(ii).
(d)information about any member of the police force or an approved authority or an officer of an approved authority gained by the person as a result of anything done under this Act.
Penalty:Level 6 Imprisonment (Maximum 5years).
s. 10
(4)Subsection (3) does not apply to a disclosure or communication—
S. 10(4)(a) amended by No. 31/2000 s.12(1)(d).
(a)that has been authorised by the Chief Commissioner of Police or an approved authority; or
S. 10(4)(b) amendedby No. 63/2004 s.33(b).
(b)that is necessary for the purposes of an investigation by the Director; or
(c)that is necessary to comply with an order of the Supreme Court.
S. 10(5) substituted by No. 31/2000 s.12(2).
(5)A person must not, without lawful authority, disclose information in Victoria or elsewhere—
(a)about the identity or location of a person who is or has been a participant; or
(b)that compromises the security of such a person.
Penalty:Level 5 Imprisonment (Maximum 10years).
S. 10(6) inserted by No. 31/2000 s.12(2).
(6)A person must not, without lawful authority, disclose information in Victoria—
(a)about the identity or location of a person who is or has been a recognised participant; or
(b)that compromises the security of such a person.
Penalty:Level 5 Imprisonment (Maximum 10years).
11Offences in relation to documents
s. 11
S. 11(1) amended by No. 58/1996 s.10(1).
(1)Whilst an entry made in the register of births or register of marriages under this Act continues in force, a person in respect of whom the entry is made must not use or obtain any document issued by the Registrar which is based on the previous entry.
Penalty:10 penalty units.
S. 11(2) amended by No. 58/1996 s.10(1).
(2)If an entry made in the register of births or register of marriages under this Act is cancelled, the Registrar must notify in writing the person in respect of whom the entry was made that the entry has been cancelled.
(3)A person who has been notified under subsection (2) must within 14 days of being notified return to the Registrar any document issued by the Registrar which is based on that entry and which is in the person's possession.
Penalty:10 penalty units.
12Immunity from proceedings
s. 12
(1)This section applies to any person who is or has been—
(a)the Registrar; or
(b)a person employed or appointed under section 40 of the Registration of Births Deaths and Marriages Act 1959; or
S. 12(1)(ba) inserted by No. 43/1996
s. 65(Sch. item 14.5).
(ba)a person appointed or employed under section 7 of the Births, Deaths and Marriages Registration Act 1996; or
(c)the Chief Commissioner of Police; or
S. 12(1)(d) amended by No. 58/1996 s.10(2).
(d)a member of the police force; or
S. 12(1)(e) inserted by No. 58/1996 s.10(2).
(e)the Ombudsman; or
S. 12(1)(f) inserted by No. 58/1996 s.10(2), amended by Nos 31/2000 s.13, 63/2004 s.33(b).
(f)the Director; or
S. 12(1)(g) inserted by No. 31/2000 s.13.
(g)an officer of an approved authority.
(2)Unless the Supreme Court makes a court order which provides to the contrary, or the proceedings relate to an offence under this Act, a person to whom this section applies cannot be required in any proceedings in any court or tribunal to produce any document or to divulge or communicate any matter or thing relating to the performance of his or her duties in accordance with this Act.