(5) A party to the proceedings, the operative to whom the certificate relates or the chief officer who gave the certificate may apply to the original court for an adjournment:
(a) to appeal against the decision of the original court to give or refuse leave, or to make or refuse to make the order; or
(b) to decide whether to appeal or seek leave to appeal against the decision.
(6) If an application is made under subsection (5), the original court must grant the adjournment.
(1) This section applies if the chief officer of a law enforcement agency gives a witness identity protection certificate for an operative in relation to a proceeding.
(2) The chief officer must cancel the witness identity protection certificate if the chief officer considers that it is no longer necessary or appropriate to prevent the disclosure of the operative’s identity or where the operative lives.
(3) If the chief officer cancels the certificate after it has been filed in a court, the chief officer must immediately give notice to the court and each party to the proceeding, in writing, that the certificate has been cancelled.
Note: The chief officer may delegate functions under this section—see section 15MX.
15MR Permission to give information disclosing operative’s identity etc.
(1) This section applies if the chief officer of a law enforcement agency gives a witness identity protection certificate for an operative in relation to a proceeding.
(2) The chief officer may, in writing, permit a person to give information (otherwise than in the proceeding) that discloses, or may lead to the disclosure of, the operative’s identity or where the operative lives if the chief officer considers it necessary or appropriate for the information to be given.
(3) The permission:
(a) must name the person who may give the information; and
(b) must name the person to whom the information may be given; and
(c) must state the information that may be given; and
(d) may state how the information may be given.
Note: The chief officer may delegate functions under this section—see section 15MX.
15MS Disclosure offences
(1) A person commits an offence if:
(a) a witness identity protection certificate for an operative in relation to a proceeding has been given; and
(b) the certificate has not been cancelled under section 15MQ; and
(c) the person engages in conduct; and
(d) the conduct results in the disclosure of the operative’s identity or where the operative lives; and
ZoeLaw is not a law firm. Picks are our opinion; we don't share your details.
(e) none of the following applies:
(i) the conduct is required by section 15ML;
(ii) the conduct is authorised by leave or by an order under section 15MM;
(iii) the conduct is permitted under section 15MR.
Penalty: Imprisonment for 2 years.
(2) A person commits an offence if:
(a) a witness identity protection certificate for an operative in relation to a proceeding has been given; and
(b) the certificate has not been cancelled under section 15MQ; and
(c) the person engages in conduct; and
(d) the conduct results in the disclosure of the operative’s identity or where the operative lives; and
(e) none of the following applies:
(i) the conduct is required by section 15ML;
(ii) the conduct is authorised by leave or by an order under section 15MM;
(iii) the conduct is permitted under section 15MR; and
(f) the person is reckless as to whether his or her conduct will endanger the health or safety of another person.
Penalty: Imprisonment for 10 years.
(3) A person commits an offence if:
(a) a witness identity protection certificate for an operative in relation to a proceeding has been given; and
(b) the certificate has not been cancelled under section 15MQ; and
(c) the person engages in conduct; and
(d) the conduct results in the disclosure of the operative’s identity or where the operative lives; and
(e) none of the following applies:
(i) the conduct is required by section 15ML;
(ii) the conduct is authorised by leave or by an order under section 15MM;
(iii) the conduct is permitted under section 15MR; and
(f) the person is reckless as to whether his or her conduct will:
(i) prejudice any current or future investigation; or
(ii) prejudice any current or future activity relating to security.
Penalty: Imprisonment for 10 years.
15MT Evidentiary certificates
(1) A chief officer of a law enforcement agency may sign a certificate stating any of the following:
(a) that, for the purposes of paragraph 15MS(1)(b), (2)(b) or (3)(b), a witness identity protection certificate for an operative in relation to a proceeding has not been cancelled under section 15MQ;
(b) whether, for the purposes of subparagraph 15MS(1)(e)(i), (2)(e)(i) or (3)(e)(i), the conduct that is the subject of the offence was required by section 15ML;
(c) whether, for the purposes of subparagraph 15MS(1)(e)(ii), (2)(e)(ii) or (3)(e)(ii), the conduct that is the subject of the offence was authorised by leave or by an order under section 15MM;
(d) whether, for the purposes of subparagraph 15MS(1)(e)(iii), (2)(e)(iii) or (3)(e)(iii), the conduct that is the subject of the offence was permitted under section 15MR.
(2) In any proceedings, a certificate given under this section is prima facie evidence of the matters certified in it.
15MU Reports about witness identity protection certificates
(1) As soon as practicable after the end of each financial year, the chief officer of a law enforcement agency must submit to the Minister a report about witness identity protection certificates given by the chief officer during that year.
(2) The report must include the following:
(a) the number of witness identity protection certificates given;
(b) on what basis the chief officer was satisfied about the matters mentioned in paragraph 15ME(1)(b) for each certificate;
(c) if disclosure of an operative’s identity to a presiding officer was required by section 15ML—details of the proceeding in relation to which disclosure was required and details of the things that the presiding officer required the operative to do under that section;
(d) if leave was given or an order made under section 15MM in a proceeding in which a witness identity protection certificate for an operative was filed—details of the proceeding that relate to the leave or order;
(e) if leave was given for joinder of a person as a respondent to proceedings under section 15MN—details of the person who was joined and who appeared on their behalf;
(f) if leave was given for an adjournment under section 15MP—details of whether an appeal was made against the decision under that section;
(g) if a witness identity protection certificate was cancelled under section 15MQ—the reasons why the certificate was cancelled;
(h) if a permission was given under section 15MR—the reasons why the permission was given;
(i) any other information relating to witness identity protection certificates and the administration of this Part that the Minister considers appropriate.
(3) A report must not include information that discloses, or may lead to the disclosure of, an operative’s identity, or where the operative lives, unless the witness identity protection certificate for the operative has been cancelled.
(4) The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the Minister receives the report.
Division 3—Mutual Recognition under Corresponding Laws
15MW Recognition of witness identity protection certificates under corresponding laws
The following provisions apply, with any necessary changes, to a corresponding witness identity protection certificate as if it were a witness identity protection certificate given under section 15ME:
(a) section 15MH (filing and notification);
(b) section 15MI (leave for non‑compliance);
(c) section 15MJ (effect of witness identity protection certificate);
(d) section 15MK (orders to protect operative’s identity etc.);
(e) section 15ML (disclosure of operative’s identity to presiding officer);
(f) section 15MM (disclosure of operative’s identity etc. despite certificate);
(g) section 15MN (application for leave—joinder as respondent);
(h) section 15MO (directions to jury);
(i) section 15MP (adjournment for appeal decision);
(j) section 15MS (disclosure offences);
(k) section 15MT (evidentiary certificates).
Division 4—General
15MX Delegation
(1) Except as provided by this section (and despite any other Act or law to the contrary), the functions of a chief officer under this Part may not be delegated to any other person.
(2) A chief officer may delegate any of the chief officer’s functions under this Part (except this power of delegation) to a senior officer of the law enforcement agency.
(3) In this section:
senior officer means:
(a) in relation to the Australian Federal Police—a Deputy Commissioner, an Assistant Commissioner, or a person occupying an equivalent or higher rank in the Australian Federal Police; and
(b) in relation to the Immigration and Border Protection Department—a person who holds or performs the duties of an SES Band 3 position, or an equivalent or higher position, in that Department; and
(c) in relation to the ACC, either of the following:
(i) the Executive Director Operational Strategies, the Executive Director Intelligence Strategies, or a person occupying an equivalent or higher position in the ACC;
(ii) a person occupying a position prescribed by the regulations; and
(d) in relation to the Australian Taxation Office—an Assistant Commissioner, or a person occupying an equivalent or higher position in the Australian Taxation Office; and
(e) in relation to a Commonwealth agency specified in the regulations for the purposes of the definition of law enforcement agency—an officer of the agency specified in the regulations to be a senior officer of the agency.
Part IAD—Protecting vulnerable persons
Division 1—Introduction
15Y Proceedings to which this Part applies
Proceedings involving children
(1) This Part contains special rules for children involved in proceedings to which this subsection applies. This subsection applies to proceedings for any of the following offences:
(b) an offence against section 71.8 of the Criminal Code (sexual assault of United Nations and associated personnel);
(ba) an offence against Division 268 of the Criminal Code that is:
(ia) genocide (within the meaning of that Code); or
(i) a crime against humanity (within the meaning of that Code); or
(ii) a war crime (within the meaning of that Code); or
(iii) a crime against the administration of the justice of the International Criminal Court (within the meaning of that Code);
(c) an offence against Division 270 of the Criminal Code (slavery and slavery‑like offences);
(caa) an offence against Division 271 of the Criminal Code (trafficking in persons);
(cab) an offence against Division 272 of the Criminal Code (child sex offences outside Australia);
(cac) an offence against Division 273 of the Criminal Code (offences involving child abuse material outside Australia);
(cad) an offence against Division 273B of the Criminal Code (protection of children);
(cae) an offence against Division 274 of the Criminal Code (torture);
(caf) an offence against Division 309 of the Criminal Code (drug offences involving children);
(ca) an offence against Subdivision B or C of Division 471 of the Criminal Code (offences relating to use of postal or similar service involving sexual activity with person under 16);
(cba) an offence against Subdivision D or F of Division 474 of the Criminal Code (offences relating to use of carriage service involving sexual activity with, or harm to, person under 16);
(cbb) an offence against Part IIIA of this Act as in force at any time before the commencement of Schedule 1 to the Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010;
(cbc) an offence against any of the following arising under section 6 of the Crimes at Sea Act 2000:
(i) Part 3 (Sexual offences) of the Crimes Act 1900 (ACT);
(ii) Part 3A (Intimate image abuse) of the Crimes Act 1900 (ACT);
(iii) Part 4 (Female genital mutilation) of the Crimes Act 1900 (ACT);
(iv) Part 5 (Sexual servitude) of the Crimes Act 1900 (ACT);
(cbd) an offence against section 14 or 15 of the Crimes (Aviation) Act 1991 arising under any of the following:
(i) Part 3 (Sexual offences) of the Crimes Act 1900 (ACT);
(ii) Part 3A (Intimate image abuse) of the Crimes Act 1900 (ACT);
(iii) Part 4 (Female genital mutilation) of the Crimes Act 1900 (ACT);
(iv) Part 5 (Sexual servitude) of the Crimes Act 1900 (ACT);
(cb) an aggravated offence against Subdivision C of Division 12 of Part 2 of the Migration Act 1958;
(d) a sexual offence specified in the regulations;
(e) an offence that includes the commission of, or the intention to commit, an offence of a kind referred to in one of the preceding paragraphs of this subsection;
(f) an offence of:
(i) attempting to commit; or
(ii) conspiring to commit; or
(iii) inciting the commission of;
an offence of a kind referred to in one of the preceding paragraphs of this subsection.
Note: Schedule 1 to the Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010 commenced on 15 April 2010.
Proceedings involving adult complainants
(2) This Part contains special rules for adult complainants involved in proceedings to which this subsection applies. This subsection applies to proceedings for any of the following offences:
(aa) an offence against section 71.8 of the Criminal Code (sexual assault of United Nations and associated personnel);
(ab) an offence against Division 268 of the Criminal Code that is:
(ia) genocide (within the meaning of that Code); or
(i) a crime against humanity (within the meaning of that Code); or
(ii) a war crime (within the meaning of that Code); or
(iii) a crime against the administration of the justice of the International Criminal Court (within the meaning of that Code);
(a) an offence against Division 270 of the Criminal Code (slavery and slavery‑like offences);
(b) an offence against Division 271 of the Criminal Code (trafficking in persons);
(bd) an offence against Division 274 of the Criminal Code (torture);
(bi) an offence against any of the following arising under section 6 of the Crimes at Sea Act 2000:
(i) Part 3 (Sexual offences) of the Crimes Act 1900 (ACT);
(ii) Part 3A (Intimate image abuse) of the Crimes Act 1900 (ACT);
(iii) Part 4 (Female genital mutilation) of the Crimes Act 1900 (ACT);
(iv) Part 5 (Sexual servitude) of the Crimes Act 1900 (ACT);
(bj) an offence against section 14 or 15 of the Crimes (Aviation) Act 1991 arising under any of the following:
(i) Part 3 (Sexual offences) of the Crimes Act 1900 (ACT);
(ii) Part 3A (Intimate image abuse) of the Crimes Act 1900 (ACT);
(iii) Part 4 (Female genital mutilation) of the Crimes Act 1900 (ACT);
(iv) Part 5 (Sexual servitude) of the Crimes Act 1900 (ACT);
(bk) an aggravated offence against Subdivision C of Division 12 of Part 2 of the Migration Act 1958;
(bl) a sexual offence specified in the regulations;
(c) an offence that includes the commission of, or the intention to commit, an offence of a kind referred to in one of the preceding paragraphs of this subsection;
(d) an offence of:
(i) attempting to commit; or
(ii) conspiring to commit; or
(iii) inciting the commission of;
an offence of a kind referred to in one of the preceding paragraphs of this subsection.
Note: Schedule 1 to the Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010 commenced on 15 April 2010.
Proceedings involving special witnesses
(3) This Part contains special rules that can apply for special witnesses involved in proceedings for any Commonwealth offence.
Related proceedings included
(4) Each of subsections (1), (2) and (3) also applies to any proceedings connected with a proceeding referred to in that subsection.
Example: Committal proceedings.
(5) Similarly, subsection 15YAB(1) (about special witnesses) also applies to any proceedings connected with a proceeding for a Commonwealth offence.
15YA Definitions
In this Part, unless the contrary intention appears:
adult means a person who is 18 or over.
child means a person who is under 18.
child complainant has the meaning given by section 15YAC.
child proceeding means a proceeding to which subsection 15Y(1) applies.
child witness has the meaning given by section 15YAD.
closed‑circuit television includes any similar technology specified in the regulations.
credibility has the meaning given by the Evidence Act 1995.
cross‑examination has the meaning given by the Evidence Act 1995.
evidence in chief means evidence given in examination in chief within the meaning of the Evidence Act 1995.
evidence recording hearing means a hearing ordered under section 15YDB(1).
party to a proceeding includes the prosecutor, each defendant and each person named in evidence given in the proceeding.
proceeding means a proceeding to which one or more of subsections 15Y(1), (2) and (3) apply.
special witness has the meaning given by subsection 15YAB(1).
special witness proceeding means a proceeding to which subsection 15Y(3) applies.
vulnerable adult complainant has the meaning given by section 15YAA.
vulnerable adult proceeding means a proceeding to which subsection 15Y(2) applies.
15YAA Vulnerable adult complainants
(1) A vulnerable adult complainant, in relation to a vulnerable adult proceeding, is an adult who is, or is alleged to be, a victim of an offence, of a kind referred to in subsection 15Y(2), to which the proceeding relates.
(2) However, the adult is not a vulnerable adult complainant if the adult informs the court that he or she does not wish to be treated as such a complainant.