Crimes (Protection of Witness Identity) Regulation 2017

The Regulation introduces one primary statutory concept: the declared "corresponding law". Section 3 is the operative clause and lists the non-ACT statutes that are declared to correspond to the ACT Act. The list is precise: each entry specifies a statute and a discrete part or division within that statute. The entries are:

• Crimes Act 1914 (Cwlth), part 1ACA;
• Evidence (Miscellaneous Provisions) Act 1958 (Vic), part IIAA;
• Evidence Act 1977 (Qld), part 2, division 5;
• Criminal Investigation (Covert Powers) Act 2012 (WA), part 4;
• Criminal Investigation (Covert Operations) Act 2009 (SA), part 4;
• Witness (Identity Protection) Act 2006 (Tas), part 2;
• Police (Special Investigative and Other Powers) Act 2015 (NT), part 4 (s 3).

Two subsidiary republication concepts are also relevant to interpreting this Regulation. The Parliamentary Counsel’s Office material prefacing the republished Regulation explains the kinds of republications and the role of editorial amendments made under the Legislation Act 2001, part 11.3. That prefatory material records that editorial changes do not change the effect of the law but may be applied to bring the law into closer alignment with drafting practice; and further notes that this particular republication does not include amendments made under part 11.3 (see endnote 1 and the "About this republication" text). Those prefatory notes therefore set a boundary around what this republication contains and indicate where to look for further updates or editorial changes.

The Regulation does not define "corresponding law" beyond the act of declaration in s 3. The legal import of declaring correspondence thus depends on how that phrase is used by the parent Act (the Act itself is not reprinted here). The operative mechanism of the Regulation is therefore declarative: it links the ACT Act to specifically identified provisions in other jurisdictions by naming them. The principal practical consequence of that mechanism is that, wherever the Act refers to "a corresponding law" or to equivalents in other jurisdictions, the list in s 3 supplies the defined set of statutes and parts that answer that reference.

The Regulation contains no subordinate schedules, no regulatory obligations, no offence provisions within its text, and no operational procedures for inter-jurisdictional cooperation. Its entire substantive content is the identification of corresponding laws and the formal title (s 1; s 3).

Because the Regulation is a map identifying which external provisions are to be treated as "corresponding laws" to the ACT Act, the persons and bodies affected are those that operate under, apply, advise on, or enforce the Act and which therefore need to know what statutes count as corresponding laws. The immediate practical audiences are:

• Courts and tribunal decision-makers applying the Act where the concept "corresponding law" is engaged. When the Act requires reference to a corresponding law, judges and magistrates will look to this Regulation to identify the relevant interstate/Commonwealth provisions (s 3).
• Prosecutors, defence counsel and private practitioners who advise clients about witness-identity protections under the Act, and who need to coordinate evidence or procedures that implicate other jurisdictions listed in s 3.
• ACT government agencies responsible for witness protection, court administration, or criminal procedure, where inter-jurisdictional recognition or procedural harmonisation may be triggered by the Act’s references to corresponding laws. Those agencies must treat the listed parts as the instruments that correspond to the ACT law (s 3).
• Persons subject to the Act, including witnesses whose identity protection is at issue, insofar as remedies, protections or procedures under the Act may be engaged by reference to the declared corresponding laws.
• Legislative drafters and regulators who must maintain the Regulation’s accuracy; they bear the administrative burden of monitoring the listed external provisions for amendments or repeal and determining whether the Regulation needs amending to maintain correspondence.

The Regulation does not itself alter rights or create duties; instead it affects how the Act will be applied. Because the Regulation fixes a specific list of corresponding provisions, parties who rely on cross-jurisdictional equivalence (for example in evidence treatment or witness identity protection) must verify that the particular parts named in s 3 continue to reflect the current law in those jurisdictions. If the external statute is amended, replaced or renumbered, the declared correspondence in s 3 may cease to reflect the operative provisions, which in turn affects anyone seeking to rely on that declared equivalence.

Finally, the republication preliminaries affect users who consult the consolidated text: the Parliamentary Counsel’s Office notes that editorial amendments under the Legislation Act 2001, part 11.3, may appear in some republications and that this republication does not include such amendments (endnote 1). That matters to practitioners because changes effected under part 11.3 may not be captured here and will need separate checking on the legislation register.

The Regulation itself imposes no substantive duties nor creates explicit rights. Its operative act is declaratory: s 3 declares a set of other statutes and specific parts to be "corresponding laws." From that mechanism follow a small set of practical obligations and entitlements that are indirect and context-dependent, because they arise only when the parent Act relies on the notion of a "corresponding law." The Regulation therefore creates the following legal posture:

• Obligation to consult: Decision-makers and practitioners applying the Act have an implicit obligation to consult the Regulation when the Act uses "corresponding law," because s 3 is the statutory instrument that identifies which external provisions qualify. That is a procedural obligation backed by the normal rule that regulations made under an Act are part of the legal framework for interpreting and applying the Act (s 3).
• Right to point to specified counterparts: Where a party needs to show that a particular non-ACT provision is the appropriate counterpart to an ACT provision, the Regulation gives them a clear basis to point to the specified Commonwealth or other jurisdictional parts listed in s 3. This is an evidential or interpretive right, not an independent substantive right.
• Administrative duty of maintenance: The Regulation creates an administrative duty for the ACT executive/legislative scribe to keep the list current if the Act’s reliance on corresponding laws is to remain effective. The Regulation’s list is static until amended; therefore, the agencies responsible for the Act will have a duty to monitor the listed laws and seek amendments to the Regulation if the correspondence needs updating (implicit from the listing mechanism in s 3).
• No new enforcement powers: The Regulation does not create enforcement mechanisms or penalties within its text. Any enforcement consequences arise from the Act and other laws; this Regulation merely supplies interpretive content for references to corresponding laws (s 3).

Because the Regulation refers to parts of other statutes rather than entire statutes, the duty of precision falls on users. For instance, the list singles out "part 1ACA" of the Crimes Act 1914 (Cwlth) and particular parts of state and territory Acts (s 3). That means that parties invoking correspondence cannot rely on a wholesale equivalence between Acts; they must show correspondence with the listed parts.

The prefatory republication text and endnotes also import a further obligation: users must verify the currency of the republished material because editorial changes under the Legislation Act 2001 may not be fully reflected here (endnote 1). The Regulation therefore creates a secondary duty to check the legislation register for any uncommenced amendments or modifications (see the republication notes).

The Regulation contains no offence provisions and does not itself create penalties. It is declaratory and interpretive in character (s 3). Nonetheless, the republication front matter states the applicable penalty unit values for offences against "this law" as at the republication date: a penalty unit was $150 for an individual and $750 for a corporation, citing the Legislation Act 2001, s 133 (republication header). That information indicates the monetary scale to be applied if one were dealing with offences created by the parent Act or other subordinate instruments that reference penalty units, but the Regulation itself does not specify any particular offences.

Enforcement, accordingly, remains a matter for the Act and any other substantive criminal or procedural statutes; the Regulation can influence enforcement only insofar as the Act invokes "corresponding law" and enforcement or evidentiary rules depend on cross-jurisdictional equivalence. For example, if the Act conditions a particular enforcement step on the existence of a corresponding provision in another jurisdiction, the list in s 3 defines which external provisions qualify; but the power to enforce lies in the Act or in other criminal statutes, not in the Regulation.

The republication materials also set out administrative procedures relevant to the currency of the law, such as notes about uncommenced provisions, modifications and editorial amendments. Those notes do not create enforcement powers but they do signal where practitioners and enforcement bodies must check for changes (for example, uncommenced amendments accessible on the legislation register and the notation of modifications with symbol M). Practitioners enforcing or defending under the Act will therefore need to verify whether any uncommenced or modified provisions affect the Act or the declared corresponding laws, using the legislation register as directed in the republication notes.

In short: there are no new penalties in this Regulation; penalty exposure arises from the Act and other substantive laws. The only penalty-related content in the republished document is the statement of the penalty unit value for the republished law, drawn from the Legislation Act 2001, s 133.

The Regulation’s single interactional mechanism is the declaration of correspondence between the ACT Act and specific parts of Commonwealth, state and territory statutes (s 3). That creates a legal cross-reference network: whenever the ACT Act uses the term "corresponding law" (or relies on counterparts in other jurisdictions), the Regulation supplies the authoritative list of which statutes and parts count. The Regulation therefore interacts with the listed statutes in two concrete ways.

First, the Regulation depends on and points to external statutes. Each item in s 3 links the ACT Act to a particular part of another statute (for example, "Crimes Act 1914 (Cwlth), part 1ACA"). That means that any legal rule in the ACT Act that imports or conditions its operation on the presence of a corresponding law must be read together with the listed counterpart. The effect is an interpretive bridging function: the Regulation tells users where to look in other jurisdictions for materially similar provisions.

Second, the Regulation interacts with the administrative apparatus of statutory maintenance. Because statutes in other jurisdictions can be amended or repealed independently, the Regulation is a maintenance point. Where a corresponding part in another jurisdiction is amended in a way that affects equivalence, the Regulation may have to be amended to reflect the change or to remove or replace the entry. The republication notes highlight that modifications and uncommenced provisions exist on the legislation register and that the Parliamentary Counsel’s Office can make editorial amendments under the Legislation Act 2001, part 11.3; these administrative interactions matter for practitioners who must ensure the list remains current.

The prefatory republication material also records interactional points between the Regulation and the Legislation Act 2001. The Parliamentary Counsel’s Office has authority to make editorial amendments when preparing a law for republication (Legislation Act 2001, part 11.3). Those editorial changes, while not altering the substantive effect of a law, have effect as if made by an Act commencing on the republication date (Legislation Act 2001, ss 115 and 117), and the republication notes advise that not all editorial amendments are annotated. The republished Regulation explicitly states that it does not include amendments made under part 11.3 (endnote 1). Practitioners therefore need to check the legislation register to understand whether the Republication reflects the most current editorial text. In practical terms, this interaction means that reliance on the republished Regulation without checking the register risks missing editorial (non-substantive) changes or footnoted modifications.

Finally, because the Regulation lists the Commonwealth Crimes Act 1914, it implicitly interacts with Commonwealth criminal law frameworks to the extent the Act or relevant procedures envisage Commonwealth involvement. The Regulation also lists provisions from six states/territories, which means it sets up possible interpretive harmonisation or comparison across jurisdictions. The Regulation’s technical role is therefore to create a defined cross-jurisdictional set for use by courts and agencies applying the ACT Act (s 3).

The republished document includes brief formal legislative history and amendment annotations. Key recorded items are:

• Notification and commencement: The Regulation (SL2017-7) was notified on the ACT legislation register on 24 April 2017 (Legislation history). Sections 1 and 2 commenced on 24 April 2017 under the Legislation Act 2001, s 75(1). The "remainder" of the Regulation commenced on 25 April 2017 (s 2). These commencement timings are recorded in the legislation history endnote attached to the republication.
• Amendment entries: The Amendment history section of the republished text records one editorial notation: "Commencement s 2 om LA s 89 (4)". That indicates an editorial adjustment to the commencement provision with reference to the Legislation Act, but does not indicate substantive amendments to the Regulation’s content.
• No substantive amendments to the operative text: The document’s header records "Regulation not amended" as of the republication date. The republished Regulation therefore shows no later substantive amending instruments affecting the list in s 3 on the republication date.
• Editorial and republication procedure: The Parliamentary Counsel’s Office notes that it may make editorial amendments under the Legislation Act 2001, part 11.3 when preparing a law for republication; those editorial changes do not change the substantive effect of the law but have effect as if they had been made by an Act commencing on the republication date (Legislation Act 2001, ss 115 and 117). The republication prefatory material also notes that "This republication does not include amendments made under part 11.3 (see endnote 1)."

Practitioners should therefore treat the republished Regulation as a snapshot dated 25 April 2017. Where precision matters, the legislation register should be checked for any subsequent amending instruments, modifications or editorial changes that might affect either the text of the Regulation or the listed corresponding laws. The endnotes include an invitation to consult the register for uncommenced amendments, modifications or editorial changes (endnote 1 and the "About this republication" material).

Because the Regulation’s substantive text is so short, the amendment history to date is correspondingly short. The only recorded formal instrument is the Regulation itself (SL2017-7) with its commencement entries. No further amending regulations are shown in the republished document.

The republished Regulation contains no case annotations and records no litigation history. There are no reported decisions, appeals, or judicial interpretations of the Regulation contained in the document. The Regulation is declaratory and procedural , it lists corresponding laws rather than establishing novel rights or duties that frequently generate litigation , and the republished materials do not indicate any judicial engagement as at the republication date.

Where litigation would engage the Regulation, it would most likely arise in the following limited contexts, although none are recorded here:

• A court interpreting an ACT Act provision that depends on what counts as a "corresponding law" (s 3). In that scenario, parties might litigate whether the Regulation's list properly captures the relevant external provision or whether a later amendment in another jurisdiction changes the correspondence.
• A challenge to administrative action grounded on a claimed correspondence between the ACT Act and an external statutory part, where the Regulation’s list is alleged to be inconsistent with the operative law in the other jurisdiction.

None of those hypothetical litigation paths is present in the republished text. The absence of recorded litigation in this republication implies that, up to 25 April 2017, there were no annotated judicial decisions that the Parliamentary Counsel’s Office has linked to this Regulation.

Users seeking litigation history should therefore check the legislation register and legal databases for any post-republication decisions that may interpret the relationship between the ACT Act and the listed corresponding laws, or that challenge the application of the Regulation in specific cases. The republished Regulation itself provides no litigation references.

Several concrete pitfalls and practical traps arise from the Regulation’s form and content. The following are source-grounded and derive directly from the Regulation text, the republication notes and the nature of a declared-list instrument (s 3; republication notes and endnotes).

1. The list in s 3 names specific parts, not entire Acts. You cannot assume that an entire external Act corresponds to the ACT Act; only the parts specified in s 3 are declared to correspond (for example, "part 1ACA" of the Crimes Act 1914 (Cwlth) and "part 2, division 5" of the Evidence Act 1977 (Qld)). Practitioners risk error if they rely on unlisted sections of an external Act simply because the Act is listed in s 3.

2. Currency risk: the Regulation is a static list. If a corresponding part in another jurisdiction is amended, renumbered or repealed, the declared correspondence in s 3 may no longer reflect current law. The Regulation does not itself update automatically; an amending instrument would be required to change the list. The republication notes explicitly direct users to the legislation register for uncommenced amendments and modifications (see "Uncommenced provisions and amendments" and endnote 1).

3. Editorial changes may not be visible here. The Parliamentary Counsel’s Office may make editorial amendments under the Legislation Act 2001, part 11.3; the republication material explains that not all editorial amendments are annotated and states that this republication does not include amendments made under part 11.3 (endnote 1). As a result, relying solely on the text in this republished document could miss editorial relabelling or non-substantive corrections recorded elsewhere.

4. Ambiguity about legal effect beyond declaration. The Regulation declares correspondence but does not explain the legal consequences of that correspondence; those consequences are sourced in the Act. Therefore, practitioners must consult the Act to determine what effect a "corresponding law" has in any particular instance. The Regulation alone does not answer how equivalence is to be treated in practice.

5. Penalty unit sizing is external. The republished header records the penalty-unit value applicable to the republished law as at the republication date, citing the Legislation Act 2001, s 133. The Regulation itself does not set monetary penalties. Users should not assume that the penalty-unit amounts in the republication header will remain current; they derive from another statute (Legislation Act 2001) and may change.

6. Inter-jurisdictional legislative drafting differences. The Regulation links to parts in several jurisdictions. The fact that a part in another jurisdiction is listed does not guarantee textual parity. Differences in drafting, scope or operation between jurisdictions are possible and not resolved by the Regulation. Parties should not assume functional equivalence merely from inclusion in s 3.

7. No operational procedures for cross-border cooperation. The Regulation provides no protocols for evidence transfer, witness movement, confidentiality procedures, or mutual assistance. If the Act requires such operational steps when dealing with a corresponding law, those procedures will have to be sourced elsewhere; the Regulation will not supply them.

8. Reliance on the legislation register. The republication notes repeatedly direct users to consult the legislation register for the most up-to-date status (including uncommenced amendments and modifications). Failing to check the register is a practical error that can produce incorrect advice or procedural missteps where the list in s 3 has been superseded.

These are concrete and immediate "gotchas" that arise from the Regulation’s text and the republication framing. They are not speculative criticisms; they follow from the Regulation’s nature as a static declaratory instrument and from the republication notes that define the document’s scope and limitations.

Compliance in relation to this Regulation is primarily about correct statutory cross-referencing, currency-checking and procedural diligence. The Regulation creates no direct compliance regime; rather, persons and agencies who operate under the Act must take the Regulation into account whenever the Act invokes "corresponding law." The following practical steps, tied to specific provisions in the republished material, turn that basic duty into a compliance checklist.

1. Always consult s 3 when the Act requires a corresponding law. The Regulation is the authoritative source for which external statutes and parts count as corresponding for the purposes of the Act. When advising, litigating or adjudicating under the Act, cite s 3 to demonstrate which external provisions are declared to correspond.

2. Verify the currency of each listed part. Because the Regulation lists specific parts by title and part/division number, check the current text of each identified statute on the relevant jurisdiction’s legislation site or the consolidated Commonwealth/State statute databases to ensure the nominated part still exists and remains substantively equivalent. The republication materials advise consulting the ACT legislation register for modifications and uncommenced amendments (see the "About this republication" material and endnote 1).

3. Check for editorial or modifying changes not captured in the republication. The Parliamentary Counsel’s Office may have made editorial adjustments under the Legislation Act 2001, part 11.3; the republished Regulation notes it does not include amendments made under part 11.3. Confirm whether any editorial amendments affect the text you are relying on by checking the legislation register and the version history (republication header and endnote references).

4. Do not assume coverage outside the listed parts. If you need to import a provision from an external Act that is not within the specific part listed in s 3, do not assume the Regulation covers it. Either obtain express legislative amendment to the Regulation, or treat the external provision as non-declared for the purposes of the Act.

5. Record the dates of commencement and the republication date in advice or court documents. The legislation history records that sections 1 and 2 commenced on 24 April 2017 and the remainder on 25 April 2017. Where temporal application matters, include those dates in pleadings or compliance records to show which triangulation of instruments was in force at the relevant time (legislation history).

6. If cross-jurisdictional action is contemplated, coordinate with the agency responsible for the Act. Because the Regulation may be used in operational contexts , for example if an ACT witness’s protection implicates a corresponding law in another jurisdiction , involve the relevant ACT authority early to ensure that any inter-jurisdictional steps align with the declared list in s 3 and with the procedural expectations of the other jurisdiction.

7. Where penalty exposure is relevant, check the current penalty-unit value. The republished header records the penalty-unit values as at the republication date (Legislation Act 2001, s 133), but this is external to the Regulation. Confirm the current penalty unit before calculating monetary penalties or advising clients about fines, as the Legislation Act may have altered the unit value since republication.

8. Maintain an internal watch for statutory amendments in the listed jurisdictions. Assign responsibility within your firm, agency or office to monitor amendments to the listed parts in each jurisdiction. Because the Regulation is a fixed list, any change to the external law can affect the legal analysis; being alerted to amendments reduces the risk of relying on an out-of-date correspondence.

9. Document reliance on the Regulation in advice. When preparing legal advice that depends on the declared correspondence, expressly cite s 3 and confirm the date on which you checked the external parts. This produces a clear audit trail if a dispute later arises about whether the correspondence was current at the relevant time.

Following these steps will align practice with the narrow, declaratory function of the Regulation and reduce the principal risks identified above: reliance on unlisted provisions, currency gaps, and editorial or modification omissions. The Regulation’s operative instruction is simply to identify the corresponding laws; compliance consists of using that list precisely and keeping it up to date in practical application.