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WITNESS PROTECTION AMENDMENT BILL 2014
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12 March 2014
Statement of Compatibility
WELLS
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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.
Page 664
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
Page 665
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 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.
Second reading
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 ServicesMr 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:
Second reading
Page 667
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.