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12 March 1991 - Current

 
WITNESS PROTECTION AMENDMENT BILL 2014
Page 663
12 March 2014
ASSEMBLY Statement of Compatibility WELLS
                     WITNESS PROTECTION AMENDMENT BILL 2014
                           Statement of compatibility
Mr WELLS (Minister for Police and Emergency Services) tabled following statement
in accordance with Charter of Human Rights and Responsibilities Act 2006:
  In   accordance  with  section  28   of  the  Charter  of   Human  Rights  and
  Responsibilities Act  2006  (the 'charter  act'),  I  make this  statement  of
  compatibility with respect to the Witness Protection Amendment Bill 2014.
  In  my opinion, the Witness  Protection Amendment Bill  2014, as introduced to
  the  Legislative Assembly, is compatible with human rights as set out  in  the
  charter act. I base my opinion on the reasons outlined in this statement.

  Overview
  The bill  amends  the  Witness Protection Act 1991 to improve the operation of
  the  Victorian  witness  protection  program  and  allow  for  urgent  interim
  protection of witnesses while their formal entry into the program is assessed.
  Human rights issues
  Right to life and protection of children and families
  By its  very nature,  the bill  promotes the  charter act's section 9 right to
  life  and  section  17 right  to  protection  of  families  and  children. The
  Victorian witness protection  program allows the chief commissioner to protect
  witnesses and their families who are at risk of harm.

  Clause 29 of the bill also promotes the section  17(2) right  by allowing  the
  Supreme Court to  order  that children  born  to participants in  the  witness
  protection program  may  have  an identity  that  aligns with  their  parents'
  following termination from the witness protection program.
  Right to freedom of association and freedom of movement
  Section  16 of  the charter  act provides  that every person has the  right to
  peaceful  assembly and freedom of  association with others. Section  12 of the
  charter act  provides that every person lawfully within Victoria has the right
  to move freely within Victoria. Clauses 16 and 17 of the bill  are relevant to
  these rights; however,  for  the reasons outlined  below, clause 16  does  not
  limit the right and clause 17's limitation on these rights is justified.

  The process of  formal entry into  the program involves gathering information,
  conducting  preliminary investigations, obtaining  medical  and  psychological
  tests, undertaking  a  risk assessment  and  entering  into  a  memorandum  of
  understanding with a witness  (and potentially their family). This process may
  take some  weeks  or months. This  period of transition, however,  may involve
  high  risk  to  the  witness  and their family. Clause  16  allows  the  chief
  commissioner, with  the consent of the  person, to provide  interim protection
  measures to a person and their family while that  person  is  being considered
  for  formal entry into the  program. Protection measures during  this time may
  include the  person not associating with  former associates or groups,  or not
  travelling to certain places.
  Interim protection, however,  cannot be imposed  on a person. Participation in
  interim  protection requires the  person's consent and  a person may  withdraw
  their consent to participate at any time.

  For  this  reason,  clause  16  does  not  limit a person's right to  peaceful
  assembly, freedom of association and free movement within Victoria.


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In turn, clause 17 expands the current offences that protect disclosure of sensitive witness protection information with the effect that it is an offence for a person (including a participant) to disclose 'interim protection' related information. Indirectly, these offences may have the practical effect that a person subject to interim protection may not be able to associate with or contact former associates, if such contact may disclose themselves as a person subject to interim protection. The integrity of the witness protection program and the safety and wellbeing of participants, however, relies on this sensitive witness protection information not being disclosed. Clause 17's limitation of the charter act's section 16 right to freedom of association is balanced with the charter act rights contained in section 9 (right to life) and section 17 (protection of families and children). For this reason, the limitation is reasonable and justified. Right to privacy Section 13 of the charter act provides that all persons have the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with and not to have their reputation unlawfully attacked. The right includes the right to respect for a person's 'personal identity'. The right to privacy is relevant to the requirement in clause 10 for potential participants to disclose information to the chief commissioner and to the clause 15 temporary assumed identity scheme. The charter act only prohibits unlawful and arbitrary interferences with privacy. To the extent that the provisions in the bill may interfere with personal privacy, that interference will be neither unlawful nor arbitrary. The requirements for disclosure are clearly defined in the bill and disclosure serves a legitimate purpose, as discussed below. Clause 10 requires a person seeking to be included in the Victorian witness protection program to disclose certain matters to the chief commissioner. Those matters may include, for instance, medical, psychological or psychiatric examination test results, if requested by the chief commissioner. The chief commissioner may only request and use the information for the purpose of making witness protection decisions (clause 8). Clause 15 allows the chief commissioner to authorise the use of an assumed identity. The provision allows an authorised person, subject to supervision, to use an identity that is different to their own. An assumed identity authority, however, may only be used to protect the safety or welfare of a participant. Participation in the program cannot be imposed on a person. Participation in the program requires the person's consent (clauses 10 and 16) and a person may withdraw their consent to be included in the program at any time. Protection from torture and cruel, inhuman or degrading treatment Section 10(c) of the charter act provides that a person has the right not to be subjected to medical treatment without full, free and informed consent. While clause 10 of the bill may be relevant to this right, the right is not limited because participation in the program cannot be imposed on a person. Participation in the program requires the person's consent (clauses 10 and 16) and a person may withdraw their consent to be included in the program at any time. Further, the chief commissioner may only request and use psychological or psychiatric examination for the purpose of making witness protection decisions. Right to a fair hearing Section 24(1) of the charter act provides that a person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing. This right is relevant to clauses 18, 21, 25 and 27 of the bill. Clause 18 provides a presumption in favour of closed court hearings and non-publication orders in proceedings in which sensitive witness protection information may be disclosed. The sensitive information includes the original identity of a participant, the fact that a person is a participant and the fact that a person has undergone or is undergoing assessment for inclusion as a participant. Further, clause 21 clarifies that the following types of proceedings must be closed to the public: application for authority to make an entry in the register (section 7); application to cancel entry and revert to original identity (section 9); application for authority to disclose information that would otherwise be unlawful (section 10); and applications to make an entry in the Register of Births Deaths and Marriages for children born to participants (new section 20A). The integrity of the witness protection program and the safety and wellbeing of participants relies on sensitive witness protection information not being disclosed. Clauses 18 and 21 appropriately balance the right to a fair and public hearing with the rights contained in section 9 of the charter act (right to life) and section 17 (protection of families and children) and on this basis, any limitation is justified. Clauses 25 and 27 streamline the external review processes under the Witness Protection Act by removing the Independent Broad-based Anti-corruption Commission's (IBAC) merits review function over the chief commissioner's decision to terminate protection and assistance and restore former identity. However, clauses 25 and 27 are compatible with the section 24(1) right to a fair hearing because other review options remain available to participants. Specifically, the affected party's right to an internal review by a different review officer in Victoria Police and external judicial review to the Supreme Court remains. Rights in criminal proceedings The right to be presumed innocent is a longstanding right that is recognised in section 25(1) of the charter act. This right is relevant where a statutory provision shifts a burden of proof onto an accused in a criminal proceeding. Clause 16 (9L and 9M) contains protections from criminal liability. While the provisions place an evidentiary burden on the accused, they are compatible with the right to be presumed innocent for the following reasons. The protections are required because the bill authorises conduct that, but for
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these protections, would constitute a criminal offence. For example, clause 16 (9L) provides officers of issuing agencies who comply with the chief commissioner's request to create evidence of an assumed identity with a protection from criminal liability for creating the document (clause 16 (9K)). Similarly, clause 16 (9M) provides that it is not otherwise an offence (for example, fraud) for an authorised person to use his or her assumed identity document in accordance with the authority and the directions of their supervisor. If an accused person seeks to rely on the protections, they would need to point to evidence of the elements of the protections. This is, however, an evidentiary burden and not a legal burden. The protections are required in order to enable the assumed identities scheme to operate in practice and there is no other way to ensure the operation of the scheme. The Honourable Kim Wells, MP
  Minister for Police and Emergency Services

WITNESS PROTECTION AMENDMENT BILL 2014

Second reading

Mr WELLS (Minister for Police and Emergency Services) -- I move: That this bill be now read a second time. Speech as follows incorporated into Hansard in accordance with resolution of house: Witnesses are an essential part of our criminal justice system. If there is no witness, there can often be no prosecution. The Witness Protection Act 1991 establishes the Victorian witness protection program and allows the chief commissioner to protect witnesses and families who are at high risk of harm. Protecting a witness and their family can remove a barrier to that witness coming forward, assisting police and ultimately giving evidence in a criminal prosecution. This bill will improve the operation of the Victorian witness protection program. In 1991, Victoria enacted Australia's first Witness Protection Act. Since this time, all other Australian jurisdictions have followed Victoria's lead. Over time, the demands on the Victorian witness protection program have increased as police focus resources on investigating organised crime and outlaw motorcycle gang activity. This bill is the first step in implementing outstanding recommendations from OPI's 2005 review into Victoria's witness protection program and brings Victoria's act closer in line with the acts of other Australian jurisdictions. Protection tools available under the act include change of identity and relocation. Police cannot force these sorts of measures on witnesses. The witness needs to consent and cooperate. This is one of the reasons why the chief commissioner can only protect a witness under the act if they enter into an MOU detailing the protection measures and obligations of each party. The MOU also provides certainty and supports the integrity of the witness protection program. However, the assessment process prior to the chief commissioner entering into an MOU with a person may take some weeks or months. Victoria Police's specialist witness security unit must gather all the information required to conduct a full risk assessment and settle the details of the protection to be provided. This period of transition into the program may involve high risk to the witness and their family. The proposed bill will allow Victoria Police to provide urgent interim protection measures during this time ahead of formal entry into the witness protection program. The proposed bill will also improve the operation of Victoria's witness protection program and better align Victoria's act with interstate acts by: enabling the chief commissioner to authorise the use of temporary assumed identity documents; formalising in legislation the administrative steps and considerations for the chief commissioner's decisions to admit and terminate a person from the program; strengthening the information upon which witness protection decisions are made; streamlining the review mechanism under the act. Affected people will continue to have a right to an internal review and external Supreme Court judicial review of the decision. IBAC can still investigate decisions using their complaints powers; formalising the ability of the chief commissioner to suspend protection and assistance measures (for example, when someone goes into custody or overseas); making clear that witness protection is not a way to avoid obligations associated with an original identity (for example, civil debts, a criminal record, parole obligations or sex offender register requirements); introducing further measures to guard against the disclosure of identities of protected witnesses in court proceedings; and making other minor and technical amendments. Upholding the criminal law and maintaining civil order depends to a large extent on the preparedness of witnesses to assist police and ultimately give evidence in criminal trials. We need to encourage witnesses to cooperate with police and protect those who face risks in doing so. When enacted, in 1991, Victoria's Witness Protection Act led the way. While these reforms improve the existing framework, we need to ask is there anything more we can do? This is why, over the coming year, the Honourable Frank Vincent, AO, QC, will conduct a broad review into the Witness Protection Act. This review will examine outstanding recommendations of OPI's 2005 review of the Victorian police witness protection program. The review represents an opportunity for Victoria to lead the way again and ensure the laws support this important tool in the fight against organised crime into the future. I commend the bill to the house. Debate adjourned on motion of Ms KAIROUZ (Kororoit). Debate adjourned until Wednesday, 26 March.
     VICTORIA POLICE AMENDMENT (CONSEQUENTIAL AND OTHER MATTERS) BILL 2014
                           Statement of compatibility
Mr WELLS (Minister for Police and Emergency Services) tabled following statement
in accordance with Charter of Human Rights and Responsibilities Act 2006:
  In  accordance   with  section  28   of  the  Charter  of   Human  Rights  and
  Responsibilities  Act  2006  (the 'charter  act'),  I make  this  statement of
  compatibility with respect to the Victoria Police Amendment (Consequential and
  Other Matters) Bill 2014.
  In my opinion, the Victoria Police Amendment (Consequential and Other Matters)
  Bill 2014, as introduced to the Legislative Assembly, is compatible with human
  rights as set out in the charter act.

  I base my opinion on the reasons outlined in this statement.
  Overview
  The primary purpose of  the bill is to give  effect to the change in  language
  introduced by the  Victoria  Police  Act 2013 (VP act) in relation to Victoria
  Police and police officers.
  This bill makes  consequential  amendments  across  the Victorian statute book
  required  as a  result of changes in terminology introduced by the VP act. The
  bill also updates references to  provisions of the Police  Regulation Act 1958
  that will be repealed upon the commencement of the VP act. These consequential
  amendments are  technical in nature, do  not involve any substantive change in
  policy and are not relevant to any rights under the charter act.

  The bill  also amends  the  VP act  to provide  that the  Police Services  and
  Registration Board (PRS board) is  required to publish a statement of reasons,
  subject to appropriate  safeguards,  for certain decisions relating to reviews
  and registration. Consistent with the presumptions already contained in the VP
  act regarding public hearings by the PRS board, the bill applies a presumption
  in favour of  publishing  statements of  reasons  for review decisions  and  a
  presumption   against  publishing  statements   of  reasons  for  refusing  an
  application for registration or an application for renewal of registration.
  Human rights issues
  Charter act section 24 -- the right to a fair hearing

  The presumptions in  favour of disclosure  of  information by  publication  of
  statements of reasons introduced  by the bill promote  the principles of  open
  justice  and the free communication of information and are consistent with the
  right to a fair  and public hearing set out  in section 24(1) of  the  charter
  act. The provisions confirming the obligation to publish statements of reasons
  for  decisions at  clauses 5  and 6  of the bill  promotes the  requirement in
  section 24(3) of the  charter act  that all  judgements or decisions made by a
  tribunal in  a civil proceeding must be made public unless otherwise permitted
  by law.
  The VP act provides that the PRS board may hold  a hearing for the purposes of
  a review or a determination about the cancellation of a person's registration.
  The following presumptions apply:

hearings on an appeal or a review or for the cancellation of registration are to
        be public unless otherwise ordered; and
hearings conducted for the purpose of deciding whether to refuse  an application
        for  registration  or renewal  of  registration must be  held in private
        unless otherwise ordered.
  The  PRS  board may hold a  hearing  in private, either  at  the request of an
  applicant  or  on  its  own  initiative, if it is satisfied that  holding  the
  hearing in  private would facilitate the  conduct of the  proceedings or would
  otherwise be in the public interest.
  The discretion of the  PRS board  to publish information under clauses 5 and 6
  of  the  bill  is  consistent with the qualification in section 24(3)  of  the
  charter act permitting a court or tribunal not to publish proceedings.

  The bill gives the PRS  board  the  discretion  to  exclude information in the
  published statements of reasons if the PRS board considers it  in  the  public
  interest  to  do so. For  instance, this may  include  personal information or
  details regarding  victims or juveniles  who  were connected  with  the matter
  before the  PRS  board, or information  that would disclose  confidential  law
  enforcement practices.
  This discretion will  be exercised by the PRS board subject to the presumption
  in favour of disclosure. Accordingly, even if these powers limit the qualified
  right contained in section 24 of the charter act to have a matter decided by a
  court or tribunal after a public hearing, these limitations are reasonable and
  justifiable under section 7(2) of the charter act.
  Kim Wells, MP

 Minister for Police and Emergency Services

Second reading

Mr WELLS (Minister for Police and Emergency Services) -- I move: That this bill be now read a second time. Speech as follows incorporated into Hansard in accordance with resolution of house: The Victoria Police Act 2013 was passed by Parliament in December 2013. That act is a new principal act for the administration and governance of Victoria Police and it will largely replace the Police Regulation Act 1958. The primary purpose of the Victoria Police Amendment (Consequential and Other Matters) Bill 2014 is to give effect to the change in language introduced by the Victoria Police Act 2013 in relation to Victoria Police and police officers, and to update references to the Police Regulation Act 1958 that will be repealed by the Victoria Police Act 2013. The bill makes the following consequential amendments to more than 180 Victorian acts:
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it replaces references to the force with the term 'Victoria Police'; it replaces references to member of the force with the term 'police officer'; it replaces references to member of police personnel with the term 'member of Victoria Police personnel'; and where an act refers to a section within the Police Regulation Act 1958, the bill updates that reference to refer to the new equivalent section within the Victoria Police Act 2013. These consequential changes will ensure that references to Victoria Police, police officers and Victoria Police personnel are used consistently across the statute book and with proper reference to the definitions contained in the Victoria Police Act 2013. The bill also makes consequential amendments to ensure that, upon the commencement of the Victoria Police Act 2013, deputy commissioners can continue to exercise the powers of the chief commissioner under certain legislative schemes, as currently provided for in those acts. The bill also makes some amendments to the Victoria Police Act 2013. First, the bill amends the Victoria Police Act 2013 to provide that the Police Services and Registration Board (PRS board) is required to publish statements of reasons for certain decisions relating to reviews and registration, subject to appropriate safeguards. The PRS board will have the discretion to exclude information from publication when it considers that it is in the public interest to do so. These amendments will promote the principles of open justice and the free communication of information. Secondly, the bill makes a minor amendment to the Victoria Police Act 2013 to clarify the authority to make regulations in relation to appeals and reviews by inserting an express power in schedule 5 of that act. Thirdly, the bill amends the Victoria Police Act 2013 to provide transitional provisions relating to references to protective services officers, police recruits, special constables and Victoria Police employees (public servants employed by the chief commissioner). These amendments will ensure that references to these roles in other legislation or subordinate instruments will be construed as references to these roles within the meaning of this Victoria Police Act 2013. The Victoria Police Act 2013 is an important piece of legislation, representing a significant milestone in the history of Victoria Police. This bill provides the necessary consequential amendments for that act to operate effectively. I commend the bill to the house. Debate adjourned on motion of Ms KAIROUZ (Kororoit). Debate adjourned until Wednesday, 26 March.