(b) the discovery, exchange, production, inspection or disclosure of intended evidence, documents and reports of persons intended to be called by a party to give evidence;
(c) an appeal proceeding;
(d) any interlocutory or other proceeding prescribed by regulations for the purposes of this paragraph.
15MC When a charge is outstanding or pending
(1) For the purposes of this Part:
(a) a charge against a person for an offence is outstanding until the charge is finally dealt with in any of the following ways:
(i) the charge is withdrawn;
(ii) the charge is dismissed by a court;
(iii) the person is discharged by a court following a committal hearing;
(iv) the person is acquitted or found guilty of the offence by a court; and
(b) a charge against a person for an offence is pending if the person has not yet been charged with the offence, but:
(i) the person has been arrested for the offence, unless the person has been later released without being charged with an offence; or
(ii) a summons to appear before a court to answer a charge for the offence has been served on the person; and
(c) an allegation of professional misconduct against a person is outstanding if the allegation has not been finally dealt with in accordance with the procedures that apply for the purposes of dealing with an allegation of that kind.
Division 2—Witness Identity Protection Certificates for Operatives
15MD Application of Part
(1) This Part applies to a proceeding in which an operative is, or may be, required to give evidence obtained as an operative.
(2) To avoid doubt, this Part does not affect the operation of any law in relation to the protection of a person who gives, or intends to give, evidence in a proceeding.
(3) To avoid doubt, this Part does not, other than as expressly provided, limit the power of a court to control proceedings in relation to a matter before it.
15ME Witness identity protection certificate
(1) The chief officer of a law enforcement agency may give a witness identity protection certificate for an operative in relation to a proceeding if:
(a) the operative is, or may be required, to give evidence in the proceeding; and
(b) the chief officer is satisfied on reasonable grounds that the disclosure in the proceeding of the operative’s identity or where the operative lives is likely to:
(i) endanger the safety of the operative or another person; or
(ii) prejudice any current or future investigation; or
(iii) prejudice any current or future activity relating to security.
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(2) The chief officer must make all reasonable enquiries to enable the chief officer to ascertain the information required to be included in the certificate by section 15MG.
(3) The chief officer cannot give a certificate for an operative until the chief officer has obtained a statutory declaration from the operative under section 15MF.
Note: The chief officer may delegate functions under this section—see section 15MX.
(4) A decision to give a witness identity protection certificate:
(a) is final; and
(b) cannot be appealed against, reviewed, called into question, quashed or invalidated in any court.
(5) Subsection (4) does not prevent a decision to give a witness identity protection certificate being called into question in the course of any proceedings of a disciplinary nature against the person who made the decision.
(6) A witness identity protection certificate purporting to be issued under subsection (1):
(a) must be taken to be such a certificate and to have been properly issued; and
(b) is prima facie evidence of the matters in the certificate.
(7) A witness identity protection certificate is not a legislative instrument.
15MF Statutory declaration by operative
(1) Before a witness identity protection certificate is given for an operative, the operative must make a statutory declaration of the following matters:
(a) whether the operative has been convicted or found guilty of an offence and, if so, particulars of each offence;
(b) whether any charges against the operative for an offence are pending or outstanding and, if so, particulars of each charge;
(c) if the operative is or was a law enforcement officer:
(i) whether the operative has been found guilty of professional misconduct and, if so, particulars of each finding; and
(ii) whether, to the operative’s knowledge, any allegations of professional misconduct against him or her are outstanding and, if so, particulars of each allegation;
(d) whether, to the operative’s knowledge, a court has made any adverse comment about the operative’s credibility and, if so, particulars of the comment;
(e) whether the operative has made a false representation when the truth was required and, if so, particulars of the representation;
(f) if there is anything else known to the operative that may be relevant to the operative’s credibility—particulars of the thing.
(2) Subject to subsection (3), a person cannot be compelled to disclose or produce a statutory declaration made under this section in any proceeding.
(3) Subsection (2) does not apply to:
(a) proceedings for perjury or otherwise in respect of the falsity of the statutory declaration; or
(b) proceedings of a disciplinary nature against a law enforcement officer; or
(c) investigations or inquiries by a person or body in any jurisdiction having jurisdiction to investigate or inquire into the conduct of a law enforcement officer.
15MG Form of witness identity protection certificate
(1) A witness identity protection certificate for an operative in relation to a proceeding must state the following:
(a) if the operative:
(i) is known to a party to the proceeding or a party’s lawyer by a name other than the operative’s real name—that name (the assumed name); or
(ii) is not known to any party to the proceeding or any party’s lawyer by a name—the operative’s court name for the proceeding;
(b) the period the operative was involved in the investigation to which the proceeding relates;
(c) the name of the agency;
(d) the date of the certificate;
(e) the grounds for giving the certificate;
(f) whether the operative has been convicted or found guilty of an offence and, if so, particulars of each offence;
(g) whether any charges against the operative for an offence are pending or outstanding and, if so, particulars of each charge;
(h) if the operative is or was a law enforcement officer:
(i) whether the operative has been found guilty of professional misconduct and, if so, particulars of each finding; and
(ii) whether any allegations of professional misconduct against the operative are outstanding and, if so, particulars of each allegation;
(i) whether, to the knowledge of the person giving the certificate, a court has made any adverse comment about the operative’s credibility and, if so, particulars of the comment;
(j) whether, to the knowledge of the person giving the certificate, the operative has made a false representation when the truth was required and, if so, particulars of the representation;
(k) if there is anything else known to the person giving the certificate that may be relevant to the operative’s credibility—particulars of the thing.
(2) A witness identity protection certificate for an operative must not contain information that may allow the operative’s identity, or where the operative lives, to be revealed.
15MH Filing and notification
(1) A witness identity protection certificate for an operative in relation to a proceeding must be filed in the court before the operative gives evidence in the proceeding.
(2) The person who files the certificate must give a copy of it to each party to the proceeding at least 14 days (or the shorter period agreed to by the party) before the day the operative is to give evidence.
(3) The court may order the person filing the certificate to give a copy of it to a person stated in the order.
(4) This section applies subject to section 15MI.
15MI Leave for non‑compliance
(1) The person who has filed, or proposes to file, a witness identity protection certificate may apply to the court for leave not to comply with the requirement under subsection 15MH(2) in relation to the time within which a copy of the certificate is to be given.
(2) However, the court must not give such leave unless it is satisfied that it was not reasonably practicable to comply with the requirement referred to in subsection (1).
15MJ Effect of witness identity protection certificate
(1) This section applies if a witness identity protection certificate for an operative in relation to a proceeding is filed in a court.
(2) If this section applies:
(a) the operative may give evidence in the proceeding under the assumed name, or court name, stated in the certificate; and
(b) subject to section 15MM:
(i) a question must not be asked of a witness, including the operative, that may lead to the disclosure of the operative’s identity or where the operative lives; and
(ii) a witness, including the operative, cannot be required to (and must not) answer a question, give evidence or provide information that discloses, or may lead to the disclosure of, the operative’s identity or where the operative lives; and
(iii) a person involved in the proceeding must not make a statement that discloses, or may lead to the disclosure of, the operative’s identity or where the operative lives.
(3) For the purposes of this section, a person involved in a proceeding includes:
(a) the court; and
(b) a party to the proceeding; and
(c) a person given leave to be heard or make submissions in the proceeding; and
(d) a lawyer representing a person referred to in paragraph (b) or (c) or a lawyer assisting the court in the proceeding; and
(e) any other officer of the court or person assisting the court in the proceeding; and
(f) a person acting in the execution of any process or the enforcement of any order in the proceeding.
15MK Orders to protect operative’s identity etc.
(1) The court in which a witness identity protection certificate is filed may make any order it considers necessary or desirable to protect the identity of the operative for whom the certificate is given or to prevent the disclosure of where the operative lives.
(4) The court must make an order suppressing the publication of anything said when an order is made as mentioned in subsection (1).
(5) To avoid doubt, subsection (4) does not prevent the taking of a transcript of court proceedings, but the court may make an order for how the transcript is to be dealt with, including an order suppressing its publication.
(6) A person commits an offence if:
(a) an order has been made under subsection (1), (4) or (5); and
(b) the person engages in conduct; and
(c) the conduct contravenes the order.
Penalty: Imprisonment for 2 years.
(7) Subsection (6) does not limit the court’s powers, including, but not limited to, the court’s power to punish for contempt.
15ML Disclosure of operative’s identity to presiding officer
(1) This section applies if a witness identity protection certificate for an operative in relation to a proceeding is filed in a court.
(2) The presiding officer in the proceeding may require the operative to do one or both of the following:
(a) to disclose the operative’s true identity to the presiding officer;
(b) to provide the presiding officer with photographic evidence of that identity.
(3) The presiding officer must not:
(a) record information disclosed to the presiding officer under subsection (2); or
(b) retain or copy a document or other thing provided to the presiding officer under that subsection.
15MM Disclosure of operative’s identity etc. despite certificate
(1) This section applies if a witness identity protection certificate for an operative in relation to a proceeding is filed in a court.
(2) A party to the proceeding, or a lawyer assisting the court in the proceeding, may apply to the court:
(a) for leave:
(i) to ask a question of a witness, including the operative, that may lead to the disclosure of the operative’s identity or where the operative lives; or
(ii) for a person involved in the proceeding to make a statement that discloses, or may lead to the disclosure of, the operative’s identity or where the operative lives; or
(b) for an order requiring a witness, including the operative, to answer a question, give evidence or provide information that discloses, or may lead to the disclosure of, the operative’s identity or where the operative lives.
(3) In this section:
person involved in the proceeding has the same meaning as in subsection 15MJ(3).
(4) The court may do either or both of the following:
(a) give leave for the party or lawyer to do anything mentioned in paragraph (2)(a);
(b) make an order requiring a witness to do anything mentioned in paragraph (2)(b).
(5) However, the court must not give leave or make an order unless it is satisfied about each of the following:
(a) there is evidence that, if accepted, would substantially call into question the operative’s credibility;
(b) it would be impractical to test properly the credibility of the operative without allowing the risk of disclosure of, or disclosing, the operative’s identity or where the operative lives;
(c) it is in the interests of justice for the operative’s credibility to be able to be tested.
(6) If there is a jury in the proceeding, the application must be heard in the absence of the jury.
(7) Unless the court considers that the interests of justice require otherwise, the court must be closed when:
(a) the application is made; and
(b) if leave is given or an order is made—the question is asked (and answered), the evidence is given, the information is provided or the statement is made.
(8) The court must make an order suppressing the publication of anything said when:
(a) the application is made; and
(b) if leave is given or an order is made—the question is asked (and answered), the evidence is given, the information is provided or the statement is made.
(9) To avoid doubt, subsection (8) does not prevent the taking of a transcript of court proceedings, but the court may make an order for how the transcript is to be dealt with, including an order suppressing its publication.
(10) The court may make any other order it considers appropriate to protect the operative’s identity or to prevent the disclosure of where the operative lives.
(11) A person commits an offence if:
(a) an order has been made under subsection (8), (9) or (10); and
(b) the person engages in conduct; and
(c) the conduct contravenes the order.
Penalty: Imprisonment for 2 years.
(12) Subsection (11) does not limit the court’s powers, including, but not limited to, the court’s power to punish for contempt.
15MN Application for leave—joinder as respondent
(1) This section applies if:
(a) a witness identity protection certificate for an operative in relation to a proceeding is filed in a court; and
(b) a person applies:
(i) for leave under section 15MI or 15MM; or
(ii) for an order under section 15MK or 15MM.
(2) The court in which the application is pending may allow a person to join the application as a respondent if:
(a) the person is:
(i) the operative in relation to whom the witness identity protection certificate is given; or
(ii) the chief officer of the agency who gave the witness identity protection certificate; and
(b) the person applies to be joined to the application as a respondent; and
(c) the person has sufficient interest in the subject matter of the application.
(3) If a court allows a person to join the application as a respondent under subsection (2), the court must allow the person, or the person’s legal representative, to appear and be heard.
15MO Directions to jury
(1) This section applies if:
(a) a witness identity protection certificate for an operative in relation to a proceeding is filed in a court; and
(b) there is a jury in the proceeding; and
(c) the operative gives evidence.
(2) The court must (unless it considers it inappropriate) direct the jury not to give the operative’s evidence any more or less weight, or draw any adverse inferences against the defendant or another party to the proceeding, because:
(a) there is a witness identity protection certificate for the operative; or
(b) the court has made an order under section 15MK or subsection 15MM(8), (9) or (10).
15MP Appeals and adjournments
(1) This section applies if, in proceedings before a court (the original court):
(a) the original court gives, or refuses, leave under section 15MI or 15MM in relation to a witness identity protection certificate for an operative; or
(b) the original court makes, or refuses to make, an order under section 15MK or 15MM in relation to a witness identity protection certificate for an operative.
(2) A court (the appeal court) that has jurisdiction to hear and determine appeals from a judgment, order or direction in the proceedings has jurisdiction to hear and determine an appeal against the decision to give or refuse leave, or to make or refuse to make the order.
(3) The following persons may appeal against the decision to give or refuse leave, or to make or refuse to make the order:
(a) a party to the proceedings;
(b) if the appeal court is satisfied that the operative to whom the certificate relates or the chief officer who gave the certificate has a sufficient interest in the decision—the operative or the chief officer.
(4) If a party to the proceedings appeals against the decision to give or refuse leave, or to make or refuse to make the order, the appeal court may allow the operative to whom the certificate relates, or the chief officer who gave the certificate, to join the appeal as a respondent, if the appeal court is satisfied that the operative or chief officer has a sufficient interest in the decision.