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Research Note Witness Protection Amendment Bill 2016

Introduction

On 23 March 2016, the Hon. Robin Scott, Acting Minister for Police, introduced the Witness Protection Amendment Bill 2016 into the Legislative Assembly. The Bill seeks to improve the operations of the Witness Protection Act 1991 and to deter witness intimidation by implementing all eight recommendations of the Hon. Frank Vincent AO QC's Review of the Witness Protection Act 1991 ('the Vincent Review'). This Research Note provides an overview of the Vincent Review. It also presents a timeline of the history of Victoria's Witness Protection Act, based on information in the Vincent Review.

The Vincent Review

The former Minister for Police and Emergency Services, the Hon. Kim Wells, approved the terms of reference for the Vincent Review and announced the review publicly in March 2014, during the Second Reading of the Witness Protection Amendment Bill 2014. In December 2014, the current Minister for Police, Hon Wade Noonan, agreed to the review's continuation on the same terms of reference.[footnote 1] The Vincent Review was subsequently tabled in Parliament on 24 March 2016.

The Vincent Review by former Supreme Court and Court of Appeal Judge, the Hon Frank Vincent AO QC, made eight recommendations to 'clarify the purpose of the Witness Protection Act 1991, improve the governance and administration of the witness protection program, promote community confidence in the witness protection program and deter witness intimidation'.[footnote 2]

Vincent Review recommendations
The eight recommendations are summarised as follows:

1. The Witness Protection Act 1991 should include a clear purpose and underlying principles. These principles should include that -
- the central objective of witness protection is to promote the public interest in the efficacy and integrity of the criminal justice system by providing protection to those at risk through their co-operation in its operations;
- witness protection should reduce barriers to co-operation and not be seen as a reward or inducement;
- there must be clear separation of the investigative and protective functions, to maintain the integrity of the process;
- the decision to protect a witness should be based on risk to the individual, not based on the value to the investigation or the category of offence;
- protection should be tailored to individual circumstances for the witness and community;
- the safety of the witness should take priority over a successful prosecution;
- the interests of children involved in witness protection must be considered separately, with their welfare an integral factor in decision-making; and
- there should be public accountability for the operations of the witness protection system, in line with the need for operational security.

2. The scope of the Act should be extended to include high-risk witnesses and their families who are either unwilling or unsuitable to enter the witness protection program. Currently, alternative arrangements are provided for these people outside the Act. The Vincent Review recommends that such alternative arrangements be brought under the Act, to ensure that the Act's governance and accountability framework will apply to these activities.

3. The Chief Commissioner should still be responsible for implementation of the Act and its broad discretion, though now this should be based on the Act's purpose and principles (see recommendation 1).

4. The wide immunity available to police and other officials in relation to witness protection should be removed. Instead, this indemnity should be limited to decisions to enter or not to enter a person into the witness protection program, and activities of the Register of Births, Deaths and Marriages regarding the making, alteration or cancelling of records in line with Supreme Court orders.

5. The terms of a memorandum of understanding between the Chief Commissioner and those entering either the witness protection program or alternative arrangements should be legally enforceable.

6. Each case under the witness protection Act should be reviewed at least once every two years.

7. In the interest of public accountability, an independent body should monitor the operations of the Act, to ensure that the Act's principles are put into practice, and the operations of the Act should be reported publicly, subject to the relevant security and operational requirements.

8. There should be a new indictable offence to deal with witness intimidation behaviours (max. penalty 5 years).


Source: F. Vincent (2016) Review of the Witness Protection Act 1991, Department of Justice, pp. 3-5.

 

The Witness Protection Amendment Bill 2016 aims to implement all eight of the recommendations in the Vincent Review. However one noticeable difference is in the penalty level for the new offence of witness intimidation. The Vincent Review recommends a maximum penalty of 5 years' imprisonment, while the Bill proposes a tougher penalty of a maximum of 10 years' imprisonment.[footnote 3]

Issues raised in the Vincent Review

Integrity and effectiveness of criminal justice system

In his review, the Hon. Frank Vincent AO QC argued that witness protection is not just a matter of ethical conduct. It is integral to maintaining the integrity and effectiveness of our criminal justice system, on which all Victorians depend. Accordingly, the community should be willing to provide the financial and other resources necessary for this process.[footnote 4]

Immunity

Mr Vincent believed that immunity for police officers and other staff under the current Witness Protection Act is too broad and should be limited. The Vincent Review pointed out that the second readings for the various Victorian Acts or amendments do not include adequate justification for absolute immunity for police and others.[footnote 5] Such broad immunity can have negative effects, including providing little incentive for police to exercise appropriate care in witness protection, depriving people of legal redress if misconduct or breaches occur, allowing for little external scrutiny over conduct or decisions, and the immunity applies to all conduct under the Act, even misconduct.[footnote 6]

The Review stated that if the current immunity were narrowed or removed, the standard liability scheme would still apply to police making decisions under the Witness Protection Act, as well as those implementing the decisions.[footnote 7] Witnesses could then seek redress or compensation through the courts if police do not fulfil their obligations under the memorandum of understanding that each witness signs with the Chief Commissioner upon entering witness protection.[footnote 8]

Alternative arrangements

The Vincent Review highlighted that participants who enter into alternative protection arrangements outside the Act are not given adequate legal protections.[footnote 9] Such participants are required to 'sign away' certain prior rights, as well as future rights to have the protection arrangements legally enforceable. Mr Vincent observed that 'to leverage an individual's safety and wellbeing against an organisation's potential financial liabilities in respect of that individual's prior, current and future rights is inherently offensive and contrary to fundamental notions of justice'.[footnote 10]

External monitoring and reporting

Mr Vincent believed that the external monitoring of the witness protection program by an independent body would help restore public confidence in the system. He also stated that external reporting is advisable as it encourages 'accountability for the use of public money, powers and functions given by Parliament', monitoring of trends over time and across jurisdictions, leading to more effective policy making, improved decision making regarding witness protection and the maintenance of community confidence in witness protection.[footnote 11] Mr Vincent did not believe that public reporting of the effectiveness of the Witness Protection Program, subject to appropriate conditions, would affect prosecutions or endanger people.

Record keeping

Mr Vincent was critical of the previous lack of appropriate record keeping regarding witness protection by Victoria Police. This was a central area for improvement, and he noted Victoria Police's more recent efforts to address this situation.[footnote 12]

Cultural change

In his review, Mr Vincent argued that a cultural change needed to occur within Victoria Police in relation to witness protection.[footnote 13] Mr Vincent believed that in the past, witness protection has been seen by police as an 'unfortunate necessity' for successful investigations, but which is largely outside of regular policing.[footnote 14] As witness protection was not given appropriate significance, Mr Vincent believes this contributed to governance problems and therefore 'the failures in this area were as much cultural as they were structural in nature'.[footnote 15] Mr Vincent argued that witness protection should be more highly valued within the police force, which may lead to the resolution of many issues, such as improved governance structures, better record keeping, and more effective training for staff.[footnote 16]

Family violence

The Vincent Review states that while violence related to organised crime is a significant issue in our community and indeed, the original basis for witness protection legislation, overall there is much more risk of violence within family relationships.[footnote 17] This provides additional and unique challenges to witness protection, particularly where children are involved.

Separation of investigative and protective functions

Looking at other jurisdictions, Mr Vincent thought that separation of investigative and protective functions was crucial to maintaining the integrity of the process.[footnote 18]

Witness intimidation

Mr Vincent believed that witness intimidation is 'a far more pervasive problem than is generally recognised'.[footnote 19] This view is based on Vincent's extensive experience in the criminal justice system. He believed witness intimidation is not effectively covered by existing offences, and the penalties do not reflect the seriousness of the crime.[footnote 20]

Conclusion
In presenting his recommendations, Mr Vincent stated that he has attempted to balance competing factors while also not imposing unrealistic expectations on Victoria Police. Mr Vincent emphasised the importance of the witness protection program, stating 'No witness equals no case'.[footnote 21]

 

 

Timeline – A History of Victoria's Witness Protection Act[footnote 22]


(Prior to 1991


In Victoria, the police were responsible for managing the protection of witnesses, though formal programs did not exist.)


1970


The United States passed legislation to authorise the Attorney-General to assist and protect witnesses who can give evidence in cases of organised crime.[footnote 23] The US witness protection program has grown and developed over time, and is considered to be the model to some extent for witness protection programs in other jurisdictions, including Australia.[footnote 24]


1970s and 80s


Royal Commissions
in Australia during the 1970s and 80s found that significant barriers existed for law enforcement agencies in gathering information to prosecute organised crime and translating such information into admissible evidence to achieve convictions. The Australian Royal Commission of Inquiry into Drugs in 1980 ('the Williams Royal Commission') recognised the vital role of witness protection programs in removing barriers for police informers to give evidence. The Williams Royal Commission and the Australian Royal Commission of Inquiry into Drug Trafficking in 1983 ('the Stewart Royal Commission') expressed support for establishing a national witness protection program.


1983


Victoria's witness protection was severely tested during Operation Aries, which provided 24 hour security for two witnesses and their dependents. The cost to the state was estimated at $4.5 million, a significant amount at the time and almost double the 2013/14 budget for the Witness Protection Unit. This operation brought to light the lack of a systematic approach, suitable organisation and specialist trained officers in witness protection.[footnote 25]


1986


Victoria Police established the Witness Security Unit (WitSec) to provide witness protection functions, though there was no supporting legislation at this time.


1988


The Commonwealth Parliamentary Joint Committee on the National Crime Authority published a report on witness protection in Australia. The Committee recognised the need to protect witnesses against reprisals for their co-operation and found that, as this could necessitate a long-term commitment, formal name changes and relocation was justified. The primary consideration underlying the Committee's recommendations was witnesses in organised crime cases, though the Committee also recognised that a wider range of people may be suitable for witness protection, including witnesses to other crimes, victims, accomplices and informers. The Committee also noted the need for immunity for officials who altered records in order to create new identities for witnesses. Provisions to avoid misuse of new identities was also recommended, as well as a complaints mechanism for those denied access to witness protection or wanting to appeal decisions regarding witness protection.


1991


The prosecution in the trial for the 1988 murder of Constables Steven Tynan and Damien Eyre in Walsh Street was weakened after a key witness refused to give evidence which was consistent with their previous statements. This witness had been provided with protection for a significant period before the trial.[footnote 26]


1991


Victoria led other Australian jurisdictions in legislating for witness protection by passing the Witness Protection Act 1991. The then Minister for Police, the Hon Malcolm Sandon, stated in his Second Reading Speech that the Act was 'designed to help the police combat organised crime and to solve major crimes of violence' and to 'encourage witnesses to come forward, safe in the knowledge that they will be fully protected'.[footnote 27]

The seven-page Act focused on creating new identities for witnesses by enabling the Supreme Court to authorise new identities to be made in the Register of Births, Deaths and Marriages. The Act also contained broader immunity provisions than recommended by the Commonwealth Committee, covering both police officers and registry staff in all conduct under the Act. The Act also provided that a witness must enter into a Memorandum of Understanding (MoU) with the Chief Commissioner, in order to be included in the witness protection program. The Chief Commissioner had discretion over all aspects of the program, including entry into the program, protection measures, termination from the program, dispute resolution and resourcing.


1992


The Legal and Constitutional Committee of the Victorian Parliament produced a review of Victoria's Witness Protection Act. Recommendations included that appropriate monitoring of the Act be established, involving Ministerial and public reporting on the use and effectiveness of powers under the Act. The Committee also recommended that Victoria Police keep records of information regarding the administration of the program, with a potential role for the Ombudsman to check such records. These recommendations were not implemented. Other recommendations by the Legal and Constitutional Committee included:

§ a definition of the term 'witness' be included in the Act (implemented);

§ the right to complain to the Deputy Ombudsman including for breaches or non- fulfilment of police obligations under memoranda of understanding, and a requirement that advice of this right be included in all memoranda (implemented);

§ a requirement that every application for a Supreme Court order include supporting evidence from the witness (not implemented);

§ the provision of an automatic expiry date of the effect of any court authorising order within one month of such order being issued under the Act (not implemented); and

§ the provision that the Chief Commissioner obtain a signed record of receipt from each person who receives a new birth certificate under the Act, to be signed in such person's former (old) name and dated (not implemented)[footnote 28]

1994


The Commonwealth passed witness protection legislation—the Witness Protection Act 1994—establishing the National Witness Protection Program operated by the Commissioner of the Australian Federal Police.

More detail was included in the Commonwealth Act than the Victorian Act, such as considerations for entry into the program, matters that a witness was required to disclose prior to admission, examples of protection that could be offered, provisions for witnesses who wished to marry while in the program, and provisions to ensure witnesses did not use their new identities to avoid prior obligations. Termination of protection and assistance was also included, as well as the right of review of such decisions by the Commissioner and facilitating witness protection arrangements between the States and Territories.


1995


When the Witness Protection Bill 1995 (NSW) was introduced in the NSW Parliament, the then Opposition Leader raised concerns about the Commissioner having 'absolute power to deal with people who are to be brought onto or taken off the witness protection scheme' and argued that a review mechanism for the Commissioner's decisions by the Ombudsman was required.[footnote 29] The opposition proposed amendments to that effect, which were subsequently supported by the government and included in the Bill.


1996


The Victorian Parliament amended the 1991 Act with the Witness Protection (Amendment) Act 1996. This Amendment provided for the mutual recognition of witness protection legislation in other Australian jurisdictions. Such recognition was first flagged by the 1988 Commonwealth Parliamentary Inquiry. The Amendment also implemented some of the measures recommended in the 1992 Victorian Parliamentary Committee Report (see above). The 1996 Amendment Act also -

§ listed examples of assistance and protection that may be offered;

§ included provisions for witnesses who wish to marry while in the program;

§ clarified the processes for terminating protection and assistance and restoration of a person's former identity and included a right to an internal review by the Chief Commissioner and an external appeal to the Deputy Ombudsman; and

§ required memoranda signed under the Act to advise witnesses of their right to appeal to the Deputy Ombudsman. While this appeal right remained in the Victorian Act until 2014, the person who determined such appeals changed several times in this period from the Deputy Ombudsman to the Director of the Office of Police Integrity (OPI) in 2004 and again to the Independent Broad-based Anti-corruption Commission (IBAC) in 2013.[footnote 30]


By 2002


Within seven years of the Commonwealth Act coming into effect, all other Australian States and Territories had introduced similar witness protection legislation. These Acts allowed for mutual recognition and co-operation, though technical differences remained.

§ Witness Protection Act 1995 (NSW)

§ Witness Protection Act 1996 (ACT)

§ Witness Protection Act 1996 (SA)

§ Witness Protection Act (Western Australia) Act 1996 (WA)

§ Witness Protection Act 2000 (Qld)

§ Witness Protection Act 2000 (Tas)

§ Witness Protection (Northern Territory) Act 2002 (NT)


2004


Terence Hodson was due to give evidence in a major criminal case involving alleged police corruption and links to organised crime. However, on the 16 May 2004, Terence Hodson and his wife Christine were murdered in their Kew home. The Hodsons had decided not to enter witness protection. Following their murders, the criminal case collapsed.


2005


Following the murders of the Hodsons and subsequent collapse of a serious criminal case involving alleged police corruption and organised crime, the Office of Police Integrity (OPI) conducted an 'own motion' inquiry into the Victorian witness protection program in 2005. The OPI inquiry resulted in 30 recommendations, including legislative reform and changes to Victoria Police practice.

Recommendations included that:

§ witness protection planning and development be based on three levels of threat and
witness fears (not supported by Victoria Police);

§ a framework be introduced to provide protection to witnesses who face risk but who
do not meet the criteria for, or who refuse to be included in, the program including
documenting such an agreement (not supported by Victoria Police);

§ the second level of protection generally exclude relocation, sustained financial
support or provision of a new identity (not supported by Victoria Police);

§ measures be introduced to ensure that witnesses are appropriately prepared for and
supported during their transition to life on the program, including psychological
assessments prior to entry (supported subject to legislative amendment which was not
requested until 2012);

§ measures be introduced to ensure police are appropriately trained to identify witness
intimidation and perform the witness protection function (supported subject to
verifiable data on witness intimidation being available);

§ an Assistant Commissioner chair the committee that makes decisions about entry and
termination from the program
(not supported by Victoria Police, but subsequently
implemented in 2010);

§ a further inquiry into the nature and extent of witness intimidation and of measures
which could limit its effectiveness in the criminal justice system (this recommendation
was not acted on until the conduct of the Vincent Review);

§ information about being a witness and protection offered by the program be made
publicly available (not supported by Victoria Police);

§ consideration be given to the risks imposed on the community when deciding
whether or not to relocate a witness and that these risks be assessed by both the
investigator and the WitSec (not supported by Victoria Police); and

§ information about the program be included in the Victoria Police annual report (not
supported by Victoria Police).[footnote 31]


2012


The Chief Commissioner conducted a further review of Victoria Police's witness protection program, recommending both legislative and administrative reform. Victoria Police implemented a number of administrative arrangements flowing from the 2012 Review, including:

 

§ transferring responsibility for the newly rebranded 'Witness Protection Unit' (WPU,
formerly 'WitSec') from the Protective Security Command of Victoria Police to the
Intelligence and Covert Support Command, under the Deputy Commissioner for Crime
and implementing human resource changes to the Unit (April 2014);

§ introducing policies in the Victoria Police Manual for governing and administering
witness protection functions under the Act and high risk matters which fall outside the
Act (July 2014);

§ introducing a custom developed risk assessment tool (July 2014);

§ auditing and remediating all protection files held by the WPU – including identifying
dormant files that have not been formally terminated or withdrawn, re-engaging with
the participant, conducting a new threat risk assessment and responding accordingly
(April – December 2014); and

§ making change to internal human resources to improve the attraction of appropriate
candidates to the WPU.[footnote 32]


2014


IBAC conducted an own motion inquiry into the conduct of Victoria Police regarding the management of human sources. This inquiry, led by former Supreme Court Judge the Honourable Murray Kellam AO QC, was focused on the issue of whether informer management had complied with appropriate ethical and legal obligations. The review found negligence of a high order that could potentially have adverse effects on the administration of justice in Victoria.[footnote 33]


2014


The Victorian Parliament enacted a number of reforms through the Witness Protection Amendment Bill 2014that came into effect on 1 July 2014. Under these changes - :

§ the Chief Commissioner is empowered to provide interim protection and temporary
identities
for witnesses who are being considered for inclusion in the program;

§ the Chief Commissioner is empowered to suspend protection and assistance (for
example, while a person is imprisoned or overseas);

§ the avenue of external appeal to IBAC for decisions to terminate a person from the
program has been removed. IBAC, however, retains jurisdiction to investigate police
conduct complaints in respect of the Act and affected parties retain the right to
judicial review; and

§ more detail has been added to the legislation without fundamentally changing its
scope or key tools, including listing some considerations for entry into the program,
strengthening the Chief Commissioner's ability to obtain information to assist in
making the decisions and clarifying that the Chief Commissioner could disclose
protected information
about a protected witness without it being an offence under
the Act.


2016


The Witness Protection Amendment Bill 2016 was introduced into the Legislative Assembly of the Victorian Parliament on 23 March 2016.


2016


TheReview of the Witness Protection Act 1991 by the Hon. Frank Vincent AO QC was tabled in the Victorian Parliament on 24 March 2016.

Reports

Media release

· Tougher witness protection laws to protect Victorians / media release, Acting Minister for Police, 23 Mar 2016

News articles

TV/Radio


Further resources

Research & Inquiries Service

Research Notes are produced by the Parliamentary Library's Research & Inquiries service. They provide analysis on selected components of new Bills and topical issues in response to, and in anticipation of, the needs of Members of the Victorian Parliament.

This research publication is current as at the time of printing. It should not be considered a complete guide to the particular subject or legislation covered. While it is intended that all information provided is accurate, it does not represent professional legal opinion. Any views expressed are those of the author(s).

Some hyperlinks may only be accessible on the Parliament of Victoria's intranet. All links are current and available as at the time of publication.

Author

Alice Jonas

Research & Inquiries Officer

Victorian Parliamentary Library & Information Service

Department of Parliamentary Services

 


[footnote 1] F. Vincent (2016) Review of the Witness Protection Act 1991, Department of Justice, p. 7.

[footnote 2] ibid., p. 3.

[footnote 3] Vincent (2016) op. cit., p. 5; Witness Protection Amendment Bill 2016, proposed section 257, p. 41.

[footnote 4] Vincent (2016) op. cit., p. 6.

[footnote 5] ibid., p. 43.

[footnote 6] ibid., p. 42.

[footnote 7] ibid., p. 46.

[footnote 8] ibid.

[footnote 9] ibid., p. 4,5, 18, 24, and 48.

[footnote 10] ibid., p. 24.

[footnote 11] ibid., p. 51.

[footnote 12] ibid., p. 48.

[footnote 13] ibid., p. 26.

[footnote 14] ibid.

[footnote 15] ibid.

[footnote 16] ibid.

[footnote 17] ibid., p. 35.

[footnote 18] ibid., p. 40.

[footnote 19] ibid., p. 58.

[footnote 20] ibid., p. 63.

[footnote 21] ibid., p. 65.

[footnote 22] The timeline is based primarily on information from Vincent (2016) op. cit., pp. 11-15.

[footnote 23] 18 US Code § 3521 – Witness relocation and protection

[footnote 24] Office of Police Integrity (2005) Review of the Victoria Police Witness Protection Program, IBAC website, July, p. 5.

[footnote 25] ibid., p. 6.

[footnote 26] Vincent (2016) op. cit., p. 11.

[footnote 27] M. Sandon, Minister for Police and Emergency Services (1990) 'Second Reading speech: Witness Protection Bill 1990', Debates, Victoria, Legislative Assembly, 15 November, p. 2060.

[footnote 28] Legal and Constitutional Committee of the Parliament of Victoria (1992) Report upon a Mechanism for Monitoring the Operation of the Witness Protection Act 1991, Victorian Government Printer, as cited in Vincent (2016) op. cit., p. 13.

[footnote 29] Vincent (2016) op. cit., p. 12.

[footnote 30] ibid., p. 13.

[footnote 31] Office of Police Integrity (2005) Review of the Witness Protection Program, IBAC website, July, as cited in Vincent (2016) op. cit., p. 14.

[footnote 32] Vincent (2016) op. cit., p. 15.

[footnote 33] N. McKenzie, R. Baker & N. Bucci (2015) 'IBAC Inquiry finds police mishandled key gangland witness', The Age, 10 February.