This Act establishes a NSW Police‑run witness protection program, giving the Commissioner authority to include participants, provide protection measures (including new identities and relocation), and seek sealed court orders to alter registry and identity records. It centralises operational discretion, imposes strict secrecy and record‑handling rules with significant criminal penalties, and places operational costs on NSW Police (with cost‑sharing arrangements where other agencies participate).
The Witness Protection Act 1995 (NSW) establishes and regulates a comprehensive witness protection program administered by the Commissioner of Police. Its central operative provision is s 5(1), which imposes a duty on the Commissioner, through the establishment and maintenance of a witness protection program, to “take such action as the Commissioner thinks necessary and reasonable to protect the safety and welfare of a participant”. The permissible actions are enumerated in s 5(2) and include establishing a new identity, relocation, provision of accommodation and transport, reasonable financial assistance, counselling and vocational training services, and “any other things that the Commissioner of Police considers necessary to ensure the safety of the participant”.
The Act is structured in four main Parts. Part 1 contains preliminary provisions, including an expansive definition of “witness” in s 4 that extends beyond persons who have given evidence in court to anyone who has made a statement to police or an approved authority, or who for any other reason may require protection. It also captures associates of such persons (s 4(2)). The 2024 amendments inserted ss 4A and 4B, clarifying that functions imposed on non-human “agencies” are taken to be imposed on the head of that agency.
Part 2 governs inclusion in the program. The Commissioner has sole responsibility for the decision (s 6(1)). Inclusion requires the witness’s informed consent, execution of a memorandum of understanding (MOU), and satisfaction of the multi-factor assessment in s 7 (seriousness of the offence, nature of the evidence, perceived danger, psychological evaluation, absence of viable alternatives, and criminal history). The MOU is a contractual instrument whose mandatory and optional contents are prescribed by s 8; it must warn the participant of the right to complain to the Law Enforcement Conduct Commission (s 8(3)). The Commissioner may vary the MOU by consent (s 9), record or monitor communications where the MOU so provides (s 9A, inserted 2024), and grant temporary protection pending full assessment (s 10).
Current sections
Direct links to the current provisions in Witness Protection Act 1995.
This Act commences on a day or days to be appointed by proclamation.
3
Definitions
3 Definitions
3 Definitions
(1) In this Act—
agency—see section 4A.
approved authority means—
(a) the Commissioner of the Australian Federal Police, or
(b) a Commissioner (however designated) of the police force of another State or a Territory, or
(c) the Chief Executive Officer of the Australian Crime Commission, or
(d) the Commissioner of the New South Wales Crime Commission, or
(e) an authority or body of the Commonwealth, another State or a Territory that—
(i) is authorised to conduct inquiries or investigations in relation to conduct that constitutes, or is alleged to constitute, criminal conduct, misconduct or corruption, and
(ii) is declared by the Minister by order published in the Gazette to be an approved authority for the purposes of this Act.
Commission means the Law Enforcement Conduct Commission.
communications includes any transmission of information.
complementary witness protection law means a law of the Commonwealth, another State or a Territory that—
(a) makes provision for the protection of witnesses, and
(b) is declared by the Minister by order published in the Gazette to be a complementary witness protection law.
Editorial note.
For declarations under this definition see the Historical notes at the end of this Act.
designated authority for a complementary witness protection law means the approved authority exercising functions under that law that is declared by the Minister by order published in the Gazette to be the designated authority for that law.
Editorial note.
For declarations under this definition see the Historical notes at the end of this Act.
designated position means a position of a member of the NSW Police Force that has been declared in writing by the Commissioner of Police to be a designated position for the purposes of this Act.
document includes the following—
(a) a biometric record,
(b) an educational record,
(c) a legal record,
(d) a medical record.
exercise a function includes perform a duty.
former participant, for Part 3—see section 13A.
function includes a power, authority or duty.
identity record means a document that may assist in identifying a person, other than a document forming part of the Births, Deaths and Marriages Register.
witness protection order means an order of the Supreme Court referred to in section 15.
witness protection program means a witness protection program established and maintained under section 5.
(2) Notes in the text of this Act do not form part of this Act.
s 3: Am 1996 No 104, Sch 2.5; 2002 No 54, Sch 1 [1]; 2003 No 13, Sch 1.35; 2004 No 55, Sch 2.45; 2011 No 62, Sch 3.42; 2016 No 61, Sch 6.47 [1]; 2024 No 89, Sch 1[1]–[4].
4
Meaning of “witness”
4 Meaning of “witness”
4 Meaning of “witness”
(1) For the purposes of this Act, a witness is—
(a) a person who has given, or agreed to give, evidence on behalf of the Crown in—
(ii) hearings or proceedings before an authority that is declared by the Minister by order published in the Gazette to be an authority to which this paragraph applies, or
(b) a person who has given, or agreed to give, evidence otherwise than as mentioned in paragraph (a) in relation to the commission or possible commission of an offence against a law of New South Wales, the Commonwealth, another State or a Territory, or
(c) a person who has made a statement to the Commissioner of Police, another member of the NSW Police Force or an approved authority in relation to an offence against a law of New South Wales, the Commonwealth, another State or a Territory, or
(d) a person who, for any other reason, may require protection or other assistance under this Act.
(2) A person is taken to be a witness for the purposes of this Act if the person, because of the person’s association with a person to whom subsection (1) applies, may require protection or other assistance under this Act.
s 4: Am 2011 No 62, Sch 3.42; 2024 No 89, Sch 1[5]–[7].
Legal personality and responsibilities of heads of agencies and interstate entities
4B Legal personality and responsibilities of heads of agencies and interstate entities
4B Legal personality and responsibilities of heads of agencies and interstate entities
(1) If this Act confers or imposes a function on an agency or interstate entity that the agency or entity is incapable of exercising because the agency or entity is not a person, the function is taken to be conferred or imposed on the head of the agency or entity.
(2) In this section—
head, of an agency or interstate entity, means the following—
(i) the individual who constitutes the agency or entity, or
(ii) the chief executive officer of the agency or entity, or
(iii) the principal officer of the agency or entity, or
(iv) the person responsible for managing the affairs of the agency or entity.
s 4B: Ins 2024 No 89, Sch 1[8].
Part 2
Witness protection program
Part 2 Witness protection program
Part 2 Witness protection program
5
Witness protection program
5 Witness protection program
5 Witness protection program
(1) The Commissioner of Police, through the establishment and maintenance of a witness protection program, is to take such action as the Commissioner thinks necessary and reasonable to protect the safety and welfare of a participant.
(2) That action may include the following—
(a) making arrangements necessary—
(i) to allow the participant to establish a new identity, or
(ii) otherwise to protect the participant,
(b) relocating the participant,
(c) providing accommodation for the participant,
(d) providing transport for the property of the participant,
(e) providing reasonable financial assistance to the participant,
(e1) providing to the participant services in the nature of counselling (such as psychological counselling and drug and alcohol counselling) and vocational training services,
(f) (Repealed)
(g) doing any other things that the Commissioner of Police considers necessary to ensure the safety of the participant.
(3) That action may also include doing things as a result of functions conferred on the Commissioner of Police under a complementary witness protection law.
s 5: Am 2002 No 54, Sch 1 [2] [3]; 2024 No 89, Sch 1[9] [10].
6
Inclusion in the witness protection program
6 Inclusion in the witness protection program
6 Inclusion in the witness protection program
(1) The Commissioner of Police has the sole responsibility of deciding whether to include a witness in the witness protection program, including cases where an approved authority has requested that a witness be included in the program.
(2) A witness may be included in the witness protection program only if—
(a) the Commissioner of Police has decided that the witness be included, and
(b) the witness agrees to be included, and
(c) the witness signs a memorandum of understanding in accordance with section 8 or—
(i) if the witness is under the age of 18—a parent or guardian of the witness signs the memorandum, or
(ii) if the witness otherwise lacks legal capacity to sign the memorandum—a guardian or other person who is usually responsible for the care and control of the witness signs the memorandum.
(3) If the Commissioner decides not to include a witness in the witness protection program, the Commissioner must inform the witness of the witness’s rights under subsection (4).
(4) A witness may appeal to the Commission within 3 days after being informed of a decision not to include the witness in the witness protection program. The Commission must determine the appeal within 7 days after the appeal is received. The Commission, in determining the appeal, may make any decision that could have been made by the Commissioner and the Commission’s determination has effect according to its tenor.
(5) Subsections (3) and (4) have effect despite subsections (1) and (2).
(6) If—
(a) a parent or guardian of a witness signs a memorandum of understanding because the witness was under the age of 18, and
(b) the memorandum is still operating after the witness turns 18,
the Commissioner of Police may require the witness to sign the memorandum.
s 6: Am 2002 No 54, Sch 1 [4]; 2016 No 61, Sch 6.47 [2].
7
Assessing witness for inclusion in witness protection program
7 Assessing witness for inclusion in witness protection program
7 Assessing witness for inclusion in witness protection program
(1) The Commissioner of Police, in deciding whether to include a witness in the witness protection program, must have regard to—
(a) the seriousness of the offence to which any relevant evidence or statement relates, and
(b) the nature and importance of any relevant evidence or statement, and
(c) the nature of the perceived danger to the witness, and
(d) the nature of the witness’s association with other witnesses being assessed for inclusion in the program, and
(e) if a psychological or psychiatric examination or evaluation of the witness has been conducted to determine the witness’s suitability for inclusion in the program—that examination or evaluation, and
(f) whether there are viable alternative methods of protecting the witness, and
(g) whether the witness has a criminal record, particularly in respect of crimes of violence, and whether that record indicates a risk to the public if the witness is included in the program,
and may have regard to such other matters as the Commissioner of Police considers relevant.
(2) The Commissioner of Police must not include a witness in the witness protection program if the Commissioner does not, in his or her opinion, have enough information to assess the matters referred to in this section in relation to the witness.
s 7: Am 2024 No 89, Sch 1[11].
8
Memorandum of understanding
8 Memorandum of understanding
8 Memorandum of understanding
(1) A memorandum of understanding is to—
(a) set out the basis on which a participant is included in the witness protection program and details of the protection and assistance that are to be provided, and
(b) contain a provision to the effect that protection and assistance under the program may be terminated if the participant deliberately breaches a term of the memorandum of understanding or a requirement or undertaking relating to the witness protection program.
(2) A memorandum of understanding in relation to a participant may also contain provisions relating to any one or more of the following—
(a) any outstanding legal obligations of the participant and how they are to be dealt with,
(b) any legal obligations that the participant may or may not enter into,
(c) the surrender and issue of passports,
(c1) the taking, provision and retention of photographs of the participant,
(c2) the recording or monitoring of the participant’s communications with another person, other than a person referred to in section 9A(2)(a)–(d),
(d) the issue of any documents relating to the new identity of the participant,
(e) the prohibition of the participant from engaging in specified activities,
(f) marriage, family maintenance, taxation, welfare or other social or domestic obligations or relationships,
(g) any other obligations of the participant,
(h) consequences of the participant failing to comply with the provisions of the memorandum of understanding,
(i) any other matter for which it may be necessary or convenient to make provision in the circumstances of the case.
(3) A memorandum of understanding must contain a statement advising the participant of his or her right to complain to the Commission about the conduct of the Commissioner of Police or another member of the NSW Police Force in relation to the matters dealt with in the memorandum.
(4) A memorandum of understanding must be signed by or on behalf of the witness in the presence of a member of the NSW Police Force who holds or occupies a designated position.
(5) A witness becomes included in the witness protection program when the Commissioner of Police signs the memorandum of understanding.
(6) The Commissioner of Police must, as soon as practicable after signing a memorandum of understanding, notify the relevant participant that it has been signed.
s 8: Am 2002 No 54, Sch 1 [5] [6]; 2011 No 62, Sch 3.42; 2016 No 61, Sch 6.47 [3]; 2024 No 89, Sch 1[12].
9
Variation of memorandum of understanding
9 Variation of memorandum of understanding
9 Variation of memorandum of understanding
A memorandum of understanding may be varied with the consent of the participant and the Commissioner of Police.
9A
Recording and monitoring of communications
9A Recording and monitoring of communications
9A Recording and monitoring of communications
(1) This section applies if a memorandum of understanding in relation to a participant contains a provision of the kind referred to in section 8(2)(c2).
(2) The Commissioner of Police may record or monitor the participant’s communications with another person, other than the following persons—
(a) the participant’s legal representative,
(b) a member of staff of the Commission,
(c) the Inspector,
(d) a member of the NSW Police Force who is exercising functions in relation to police misconduct investigations.
(3) The following must not be used in legal proceedings against a person who is not the participant—
(a) a recording obtained in accordance with the memorandum of understanding,
(b) a transcript or report of the recording.
(4) Subsection (2) does not authorise the Commissioner of Police to intercept communications passing over a telecommunications system.
s 9A: Ins 2024 No 89, Sch 1[13].
10
Temporary protection pending full assessment or termination
10 Temporary protection pending full assessment or termination
10 Temporary protection pending full assessment or termination
(1) The Commissioner of Police may include in the witness protection program on a temporary basis a witness who, in the Commissioner’s opinion, is in urgent need of protection.
(2) The Commissioner of Police may require an interim memorandum of understanding to be signed by or on behalf of the witness.
(3) Sections 6 and 7 do not prevent the exercise of any function under this section but, in so far as those sections have not been complied with before the witness is included in the witness protection program, they must be complied with as soon as practicable after the witness’s inclusion.
s 10: Am 2024 No 89, Sch 1[14].
11
Cessation of protection and assistance
11 Cessation of protection and assistance
11 Cessation of protection and assistance
(1) Protection and assistance provided under the witness protection program to a participant must be terminated by the Commissioner of Police if the participant requests in writing that it be terminated.
(2) Protection and assistance provided under the witness protection program may be terminated by the Commissioner of Police if—
(a) the participant deliberately breaches a term of the memorandum of understanding or a requirement or undertaking relating to the witness protection program, or
(b) the participant’s conduct or threatened conduct is, in the opinion of the Commissioner, likely to threaten the security or compromise the integrity of the witness protection program, or
(c) the circumstances that gave rise to the need for protection and assistance for the participant cease to exist, or
(d) the Commissioner is satisfied—
(i) the participant has been sentenced to full-time detention after the participant’s inclusion in the witness protection program, and
(ii) the sentence limits the Commissioner’s ability to provide adequate protection to the participant,
and the Commissioner is of the opinion that, in the circumstances of the case, the protection and assistance should be terminated.
Protection and assistance provided under the witness protection program to a participant may be suspended by the Commissioner of Police for a reasonable period determined by the Commissioner if the Commissioner is satisfied that the participant has done or intends to do something that limits the ability of the Commissioner to provide adequate protection to the person.
Note.
For example, the participant may have done something that results in him or her being in custody, or may intend to travel to a place despite a warning from the Commissioner not to go there because of the risk of harm to the participant.
s 11A: Ins 2002 No 54, Sch 1 [7].
12
Notice of involuntary termination or suspension and application for review
12 Notice of involuntary termination or suspension and application for review
12 Notice of involuntary termination or suspension and application for review
(1) If the Commissioner of Police makes a decision under section 11 (2) or 11A that protection and assistance provided under the witness protection program to a participant be terminated or suspended, the Commissioner must—
(a) take reasonable steps to notify the participant of the decision, and
(b) notify the relevant approved authority (if any) of the decision.
(2) A participant who receives such a notification may, within 14 days (in the case of termination) or 2 days (in the case of suspension) after receiving the notice, apply in writing to the Commissioner for a review of the decision.
(3) If an application is made, the Commissioner—
(a) must review the decision, and confirm, reverse or vary it, and
(b) before making that decision, must give the participant a reasonable opportunity to state his or her case, and
(c) after making that decision, must inform the participant in writing of the decision.
(4) If the Commissioner confirms a decision to terminate or suspend protection and assistance provided under the witness protection program to a participant, the Commissioner must inform the participant of the participant’s rights under subsection (5).
(5) A participant may appeal to the Commission within 3 days after being informed of the confirmation of a decision to terminate or suspend protection and assistance. The Commission must determine the appeal within 7 days after the appeal is received. The Commission, in determining the appeal, may make any decision that could have been made by the Commissioner and the Commission’s determination has effect according to its tenor.
s 12: Am 2002 No 54, Sch 1 [8]–[12]; 2016 No 61, Sch 6.47 [4].
13
Date on which involuntary termination or suspension takes effect
13 Date on which involuntary termination or suspension takes effect
13 Date on which involuntary termination or suspension takes effect
(1) A decision of the Commissioner of Police under section 11 (2) or 11A that protection and assistance provided under the witness protection program to a participant be terminated or suspended—
(a) if the participant’s location is not known and the Commissioner has taken reasonable steps to notify the participant of the decision but has been unable to do so—takes effect at the end of the appropriate review period after those steps were commenced, or
(b) if the participant does not apply for a review of the decision in accordance with section 12 (2)—takes effect at the end of the appropriate review period after the participant receives the notification, or
(c) if the participant applies for a review of the decision in accordance with section 12 (2) and the Commissioner notifies the participant that the decision has been reversed—has no effect, or
(d) if the participant applies for a review of the decision in accordance with section 12 (2) and the Commissioner notifies the participant that the decision has been varied—takes effect on the day specified by the Commissioner, or
(e) if the participant applies for a review of the decision in accordance with section 12 (2), the Commissioner notifies the participant that the decision has been confirmed and the participant does not appeal to the Commission under section 12 (5)—takes effect on the expiration of 3 days after the Commissioner notifies the participant of the decision on the review, or
(f) if the participant appeals to the Commission under section 12 (5)—has no effect.
(2) A decision of the Commission under section 12 (5) that protection and assistance provided under the witness protection program to a participant be terminated or suspended takes effect when the Commission notifies the participant of the decision.
(3) If the Commission has been unable to notify the participant of the decision despite taking reasonable steps to do so, the decision of the Commission takes effect when the Commission notifies the Commissioner of Police that the Commission has been unable to notify the participant of the decision.
(4) In this section—
appropriate review period means—
(a) if the decision is to terminate protection and assistance—14 days, or
(b) if the decision is to suspend protection and assistance—2 days.
s 13: Am 2002 No 54, Sch 1 [13]–[17]; 2016 No 61, Sch 6.47 [5].
Part 3
Protecting participants from identification
Part 3 Protecting participants from identification
Part 3 Protecting participants from identification
pt 3, hdg: Am 2024 No 89, Sch 1[17].
13A
Definition
13A Definition
13A Definition
In this part—
former participant means a person—
(a) provided with a new identity under the witness protection program, and
(b) for whom protection and assistance under the witness protection program have been terminated.
s 13A: Ins 2024 No 89, Sch 1[18].
14
Identifying documents
14 Identifying documents
14 Identifying documents
Without limiting section 5, the Commissioner of Police may apply for any documents necessary—
(a) to allow a participant to establish a new identity, or
(b) otherwise to protect the participant, or
(c) to restore a participant’s previous identity.
s 14: Am 2024 No 89, Sch 1[10] [19] [20].
15
Application for court order
15 Application for court order
15 Application for court order
(1) An applicant may apply to the Supreme Court for an order authorising a specified person or class of persons to do the following—
(a) make a new entry in the following registers in relation to a participant—
(i) the register of births,
(ii) the register of deaths,
(iii) the register of marriages,
(b) in relation to an identity record of a participant held by an agency to which the order relates—
(i) remove the identity record, or
(ii) create a new identity record in the participant’s new identity,
(c) issue a document of a kind previously issued to the participant in the participant’s new identity.
(1A) An application under subsection (1)(b)(i) must specify the type of identity record to be removed.
(2) The applicant must provide such evidence as the Supreme Court may require to satisfy itself as to the matters specified in section 17.
(3) In this section—
applicant means—
(a) the Commissioner of Police, or
(b) the designated authority for a complementary witness protection law.
s 15: Am 2002 No 54, Sch 1 [18]–[21]; 2024 No 89, Sch 1[21] [22].
16
Court proceedings under this Part to be closed to public
16 Court proceedings under this Part to be closed to public
16 Court proceedings under this Part to be closed to public
All business of the Supreme Court under this Part is to be conducted in the absence of the public.
17
Power of Supreme Court to make order
17 Power of Supreme Court to make order
17 Power of Supreme Court to make order
The Supreme Court may make a witness protection order if it is satisfied that—
(a) the person named in the application as a participant—
(i) was a witness to or has knowledge of an indictable offence and is or has been a witness in criminal proceedings relating to the indictable offence, or
(ii) is a person who, because of the person’s association with a person to whom subparagraph (i) applies, may require protection or other assistance under this Act or (in the case of an order applied for by the designated authority for a complementary witness protection law) under that law, and
(b) the life or safety of the person may be endangered as a result of the person being a witness, and
(c) the person has entered into—
(i) a memorandum of understanding under section 8, or
(ii) an interim memorandum of understanding under sections 8 and 10, or
(iii) for an order relating to an application made by the designated authority for a complementary witness protection law—a memorandum of understanding under the corresponding provision of that law, and
(d) the person is likely to comply with the memorandum of understanding, and
(e) for an order to remove an identity record under section 15(1)(b)(i)—there is a risk of the identity record linking the participant’s previous identity and new identity.
s 17: Am 2002 No 54, Sch 1 [22] [23]; 2024 No 89, Sch 1[23]–[26].
18
Effect of witness protection order
18 Effect of witness protection order
18 Effect of witness protection order
(1) On the making of a witness protection order referred to in section 15(1)(a)—
(a) a person authorised to do so by the order may make any entries in a register of births, deaths or marriages that are necessary to give effect to the order, and
(b) the Registrar of Births, Deaths and Marriages is required to give the person access to the relevant register and to give such assistance as the person may require, and
(c) the Commissioner of Police or (in the case of an order applied for by the designated authority for a complementary witness protection law) that designated authority must maintain records showing details of the original birth, death or marriage of each person in respect of whom an entry is made under paragraph (a).
(2) A witness protection order may be used to change the identity of the participant to whom the order relates—
(a) if the participant consents, and
(b) not more than twice.
s 18: Am 2002 No 54, Sch 1 [24]–[26]; 2024 No 89, Sch 1[27] [28].
19
Effect of entries made under this Act in register of births, deaths or marriages
19 Effect of entries made under this Act in register of births, deaths or marriages
19 Effect of entries made under this Act in register of births, deaths or marriages
(1A) An applicant may apply to the Supreme Court for an order directing the Registrar of Births, Deaths and Marriages to cancel an entry made under this Act in a register of births, deaths or marriages.
(2) An entry made under this Act in a register of births, deaths or marriages can only be cancelled by the Registrar of Births, Deaths and Marriages if the Supreme Court, after being satisfied that the witness is no longer included in the relevant witness protection program, has made a court order referred to in subsection (1A).
(3) In this section—
applicant means—
(a) the Commissioner of Police, or
(b) the designated authority for a complementary witness protection law.
s 19: Am 2002 No 54, Sch 1 [27] [28]; 2024 No 89, Sch 1[29]–[32].
19A
Identity records held by interstate entities
19A Identity records held by interstate entities
19A Identity records held by interstate entities
(1) This section applies if—
(a) an interstate entity holds an identity record of a participant, and
(b) there is a risk of the identity record linking the participant’s previous identity and new identity.
(2) The Commissioner of Police may ask the interstate entity to do the following—
(a) remove the identity record,
(b) create a new identity record in the participant’s new identity.
s 19A: Ins 2024 No 89, Sch 1[33].
19B
Removed identity records to be kept on request
19B Removed identity records to be kept on request
19B Removed identity records to be kept on request
(1) This section applies if an authorised person or interstate entity removes an identity record in accordance with—
(a) for an authorised person—a witness protection order, or
(b) for an interstate entity—a request made under section 19A.
(2) The authorised person or interstate entity may ask the Commissioner of Police to keep the removed identity record for the purposes of restoring a previous identity.
(3) The Commissioner of Police must comply with a request made under subsection (2).
(4) The regulations may prescribe requirements in relation to the making of a request under this section.
(5) In this section—
authorised person means a person authorised by a witness protection order to remove an identity record.
s 19B: Ins 2024 No 89, Sch 1[33].
20
Special provision in case of marriage of participant
20 Special provision in case of marriage of participant
20 Special provision in case of marriage of participant
A participant who has been provided with a new identity under the witness protection program must not marry unless—
(a) the participant has given to the Commissioner of Police or an approved authority evidence that satisfies the Commissioner or the approved authority of the identity of the participant and that the participant is of marriageable age, and
(b) if the participant has been married previously—the participant has given to the Commissioner or an approved authority evidence that satisfies the Commissioner or the approved authority that the person’s previous spouse has died or that the participant is divorced, and
(c) the participant has given to the Commissioner or an approved authority a statutory declaration to the effect that there is no legal impediment to the marriage and the Commissioner or the approved authority is not aware of any legal impediment to the marriage.
Maximum penalty—5 penalty units or imprisonment for 6 months.
21
Restoration of previous identity
21 Restoration of previous identity
21 Restoration of previous identity
(1) The Commissioner of Police may, if the Commissioner considers it appropriate in the circumstances, decide to take action to restore a former participant’s previous identity.
(2) The Commissioner of Police must take reasonable steps to notify the former participant of a decision under subsection (1).
(3) If the Commissioner of Police proposes to take action to restore the former participant’s previous identity, the former participant may apply in writing to the Commissioner for a review of the decision.
(4) If an application is made, the Commissioner of Police—
(a) must review the decision and confirm, reverse or vary it, and
(b) before making that decision, must give the participant a reasonable opportunity to state his or her case, and
(c) after making that decision, must inform the participant in writing of the decision.
(5) If the Commissioner of Police—
(a) takes action under this section to restore the previous identity of a person who was a participant, and
(b) the Commissioner notifies the former participant in writing that he or she is required to return to the Commissioner all documents provided to the former participant that relate to the new identity provided under the witness protection program,
the former participant must not, without reasonable excuse, refuse or fail to return those documents to the Commissioner within 14 days after receiving the notice.
Maximum penalty (subsection (5)): 10 penalty units.
s 21: Am 2024 No 89, Sch 1[20] [34].
22
Offences in relation to documents
22 Offences in relation to documents
22 Offences in relation to documents
While an entry made under this Act in the register of births or the register of marriages continues in force, a person in respect of whom the entry is made must not use or obtain any document issued by the Registrar of Births, Deaths and Marriages that is based on the previous entry.
Maximum penalty—10 penalty units.
23
Information not to be disclosed
23 Information not to be disclosed
23 Information not to be disclosed
(1) A person must not, either directly or indirectly, record or disclose any information relating to the making of an entry under this Act in a register of births, deaths or marriages, unless it is necessary to do so—
(a) for the purposes of this Act or a complementary witness protection law, or
(b) for the purposes of an investigation by the Commission or the Inspector, or
(c) to comply with an order of the Supreme Court.
Maximum penalty—imprisonment for 10 years.
(2) Despite subsection (1), the Commissioner of Police may disclose the previous identity of a participant or former participant for the purpose of obtaining documents relating to the new identity of the participant or former participant.
s 23: Am 2002 No 54, Sch 1 [29] [30]; 2016 No 61, Sch 6.47 [6]; 2024 No 89, Sch 1[20] [35] [36].
24
Non-disclosure of previous identity of participant
24 Non-disclosure of previous identity of participant
24 Non-disclosure of previous identity of participant
(1) If—
(a) a participant who has been provided with a new identity under the witness protection program would, apart from this section, be required by or under a law of New South Wales to disclose his or her previous identity for a particular purpose, and
(b) the Commissioner of Police has given the participant permission, in the form prescribed by the regulations, not to disclose his or her previous identity for that purpose,
the participant is not required to disclose his or her previous identity to any person for that purpose.
(2) If a participant has been given permission under subsection (1) not to disclose his or her previous identity for a particular purpose, it is lawful for the participant, in any proceedings or for any purpose, under or in relation to the relevant law of New South Wales to claim that his or her previous identity is his or her only identity.
(3) It is the duty of each person who is or has been associated with the administration of the witness protection program and who has obtained access to information or a document relevant to the witness protection program not to disclose that information or publish that document except as authorised by the Commissioner of Police.
(4) If, under a complementary witness protection law of the Commonwealth, another State or a Territory, it is lawful for a participant not to disclose his or her previous identity for a purpose approved by the Commissioner of Police, the participant is not required to disclose his or her previous identity to another person for that purpose.
(5) In addition to prescribing a form for the purposes of a permission under subsection (1), the regulations may prescribe a form for the purposes of a similar permission of the Commissioner of Police under a complementary witness protection law of the Commonwealth, another State or a Territory.
(6) In this section—
participant includes a former participant.
s 24: Am 2024 No 89, Sch 1[20][37].
25
25
25 (Repealed)
26
Identity of participant not to be disclosed in legal proceedings
26 Identity of participant not to be disclosed in legal proceedings
26 Identity of participant not to be disclosed in legal proceedings
(1) If, in any proceedings in a court, a tribunal or a Royal Commission or other commission of inquiry, the identity of a participant is in issue or may be disclosed, the court, tribunal or commission must, unless it considers that the interests of justice require otherwise—
(a) hold that part of the proceedings that relates to the identity of the participant in private, and
(b) make such order relating to the suppression of publication of evidence given before the court, tribunal or commission as, in its opinion, will ensure that the identity of the participant is not disclosed.
(2) If in any proceedings in a court, a tribunal or a Royal Commission or other commission of inquiry, a participant who has been provided with a new identity under the witness protection program is giving evidence, the court, tribunal or commission may hold that part of the proceedings in the absence of the public.
(3) This section does not limit the operation of Part 3A (Proceedings involving persons with new identity).
s 26: Am 2002 No 54, Sch 1 [32].
27
Documentation restrictions
27 Documentation restrictions
27 Documentation restrictions
The Commissioner of Police must not obtain documentation for a participant that represents that the participant—
(a) has a qualification that he or she does not have, or
(b) is entitled to a benefit that he or she is not entitled to.
28
Special commercial arrangements by Commissioner of Police
28 Special commercial arrangements by Commissioner of Police
28 Special commercial arrangements by Commissioner of Police
The Commissioner of Police may make commercial arrangements with a person under which a participant is able to obtain a benefit under a contract or arrangement without revealing his or her previous identity.
s 28: Am 2024 No 89, Sch 1[20].
29
Dealing with rights and obligations of participant
29 Dealing with rights and obligations of participant
29 Dealing with rights and obligations of participant
(1) If a participant has any outstanding rights or obligations or is subject to any restrictions, the Commissioner of Police is to take such steps as are reasonably practicable to ensure that—
(a) those rights or obligations are dealt with according to law, or
(b) the person complies with those restrictions.
(2) That action may include—
(a) providing protection for the participant while the participant is attending court, or
(b) notifying a party or possible party to legal proceedings that the Commissioner of Police will, on behalf of the participant, accept process issued by a court, a tribunal or a Royal Commission or other commission of inquiry and nominating a member of the NSW Police Force for the purpose.
s 29: Am 2011 No 62, Sch 3.42.
30
Avoidance of obligations by participant
30 Avoidance of obligations by participant
30 Avoidance of obligations by participant
(1) If the Commissioner of Police is satisfied that a participant who has been provided with a new identity under the witness protection program is using the new identity—
(a) to avoid obligations that were incurred before the new identity was established, or
(b) to avoid complying with restrictions that were imposed on the person before the new identity was established,
the Commissioner is to give notice in writing to the participant stating that he or she is so satisfied.
(2) The notice is also to state that, unless the participant satisfies the Commissioner of Police that the obligations will be dealt with according to law or the restrictions will be complied with, the Commissioner will take such action as he or she considers reasonably necessary to ensure that they are dealt with according to law or complied with.
(3) That action may include informing a person who is seeking to enforce rights against the participant of the details of any property (whether real or personal) owned by the participant under his or her previous identity.
s 30: Am 2024 No 89, Sch 1[20].
31
Payments under witness protection program
31 Payments under witness protection program
31 Payments under witness protection program
(1) The Commissioner of Police has a discretion to certify in writing that the whole or part of an amount held by a participant represents payments made to the participant under the witness protection program.
(2) An amount so certified cannot be confiscated or restrained, and cannot be applied in payment of pecuniary penalties, under the Confiscation of Proceeds of Crime Act 1989.
Part 3A
Proceedings involving persons with new identity
Part 3A Proceedings involving persons with new identity
Part 3A Proceedings involving persons with new identity
pt 3A: Ins 2002 No 54, Sch 1 [33].
31A
Definitions
31A Definitions
31A Definitions
In this Part—
court includes tribunal, Royal Commission or other commission of inquiry and the person or body holding or conducting a relevant proceeding.
protected identity of a protected person means—
(a) if the protected person is involved in a relevant proceeding under the person’s new identity—the person’s previous identity, or
(b) if the protected person is involved in a relevant proceeding under the person’s previous identity—the person’s new identity.
protected person means a person who, having been provided with a new identity under the witness protection program, retains that identity whether or not he or she remains a participant.
s 31A: Ins 2002 No 54, Sch 1 [33]. Am 2009 No 41, Sch 4; 2012 No 66, Sch 5.16 [1]; 2024 No 89, Sch 1[38] [39].
31B
Requirement if person given new identity becomes involved in relevant proceeding
31B Requirement if person given new identity becomes involved in relevant proceeding
31B Requirement if person given new identity becomes involved in relevant proceeding
(1) This section applies if a protected person becomes involved in a relevant proceeding before a court, whether under the person’s new identity or previous identity, where the person’s identity is in issue.
(1A) The protected person must notify the Commissioner of Police of the person’s involvement in the proceeding as soon as practicable after becoming involved.
Maximum penalty—50 penalty units.
(2) The Commissioner of Police must give the court concerned a certificate (a non-disclosure certificate) relating to the protected person in accordance with any requirements prescribed by the regulations.
(2A) Subject to the regulations, a non-disclosure certificate may be given to the court—
(a) before the relevant proceeding commences, and
(b) in the absence of a party to the proceeding.
(3) If the court considers it appropriate in the relevant proceeding, the court may disclose to each party to the proceeding—
(a) that the court has been given a non-disclosure certificate relating to a person involved in the proceeding, and
(b) what the certificate states.
(4) The court may only disclose what the non-disclosure certificate states in the absence of any jury empanelled for the proceeding and the public. When disclosing the certificate’s existence, the court must inform the parties of the effect of the certificate.
s 31B: Ins 2002 No 54, Sch 1 [33]. Am 2024 No 89, Sch 1[40]–[44].
31C
What non-disclosure certificate must state
31C What non-disclosure certificate must state
31C What non-disclosure certificate must state
(1) The non-disclosure certificate must state—
(a) that the person is, or has been, included in the witness protection program, and
(b) that the person has been given a new identity under this Act, and
(c) that the person has not been convicted of any offence other than an offence stated in the certificate, and
(d) that the person is entitled to give evidence by audio visual link under section 31G(1), subject to—
(i) a court order under section 31G(2), and
(ii) section 31G(5), and
(e) other information about the person the Commissioner of Police considers necessary or appropriate to include.
(2) The certificate must not include any information that may enable the protected identity of the person to be revealed, unless the Commissioner of Police is satisfied the inclusion of the information is necessary or appropriate.
s 31C: Ins 2002 No 54, Sch 1 [33]. Am 2024 No 89, Sch 1[45] [46].
31D
Effect of non-disclosure certificate
31D Effect of non-disclosure certificate
31D Effect of non-disclosure certificate
(1) On the giving of a non-disclosure certificate in respect of a protected person—
(a) a question may not be asked in the relevant proceeding that may lead to the disclosure of the protected identity of the protected person or where the protected person lives, and
(b) a witness in the relevant proceeding, including the protected person, cannot be required to answer a question, give any evidence, or provide any information, that may lead to the disclosure of the protected identity of the protected person or where the protected person lives, and
(c) a person involved in the relevant proceeding must not in the relevant proceeding make a statement that discloses or could disclose the protected identity of the protected person or where the protected person lives.
(2) This section applies despite any other Act but subject to section 31E.
s 31D: Ins 2002 No 54, Sch 1 [33].
31E
Court may grant leave to disclose relevant information
31E Court may grant leave to disclose relevant information
31E Court may grant leave to disclose relevant information
(1) The court may, on the application of a party or of its own motion, give leave to a party to ask questions of a witness, including the protected person, or make a statement that, if answered or made, may disclose the protected person’s protected identity or where the protected person lives.
(2) The only parties to whom such leave may be given are as follows—
(a) for a criminal proceeding—the prosecutor and each accused person to whom the relevant proceeding relates or the person’s legal representative,
(b) for a civil proceeding—each party to the relevant proceeding or the party’s legal representative,
(c) for another proceeding—each person who has been given leave to appear in the relevant proceeding or the person’s legal representative,
(d) in any proceedings—an Australian legal practitioner assisting the court.
(3) The court may direct that the application be heard in the absence of any jury empanelled for the proceeding and the public.
(4) The court must not give leave to a party under this section unless satisfied—
(a) there is some evidence that, if believed, would call into question the credibility of the protected person, and
(b) it is in the interests of justice for the party to be able to test the credibility of the protected person, and
(c) it would be impractical to test properly the credibility of the protected person without knowing the protected identity of the person.
(5) If the court gives leave, a person may, in accordance with the leave—
(a) ask a question that may lead to the disclosure of the protected identity of the protected person or where the protected person lives, or
(b) answer a question, give evidence, or provide information that may lead to the disclosure of the protected identity of the protected person or where the protected person lives, or
(c) make a statement that discloses or could disclose the protected identity of the protected person or where the protected person lives.
(6) If the court gives leave, the court—
(a) must hold the relevant part of the proceeding in the absence of the public, and
(b) must make an order for the suppression of publication of evidence given before it that it considers will ensure that the protected identity of the protected person and where the protected person lives is not disclosed, and
(c) may make any other order the court considers appropriate.
(7) A person must not contravene an order made under subsection (6).
Maximum penalty—50 penalty units or imprisonment for 12 months, or both.
(8) This section does not does not limit the court’s power to punish for contempt.
s 31E: Ins 2002 No 54, Sch 1 [33]. Am 2006 No 58, Sch 3.23; 2024 No 89, Sch 1[47].
Part 3B
Giving evidence by audio visual link
Part 3B Giving evidence by audio visual link
Part 3B Giving evidence by audio visual link
pt 3B (ss 31F–31J): Ins 2019 No 20, Sch 1.26.
31F
Definitions
31F Definitions
31F Definitions
In this Part—
audio visual link means facilities (including closed-circuit television) that enable audio and visual communication between persons at different places.
court includes a tribunal, Royal Commission or other commission of inquiry and the person or body holding or conducting a relevant proceeding.
protected witness means a person who is, or has been, a participant in a witness protection program.
Protected witness to give evidence by audio visual link
31G Protected witness to give evidence by audio visual link
31G Protected witness to give evidence by audio visual link
(1) A protected witness who gives evidence in a relevant proceeding before a court is entitled to give that evidence by means of audio visual link.
(2) However, a protected witness is not entitled to give evidence by means of audio visual link if the court orders that the protected witness may not give evidence by means of audio visual link.
(3) The court may make an order under subsection (2) only if the court is satisfied that it is not in the interests of justice for the protected witness to give evidence by means of audio visual link.
(4) Without limiting subsection (3), a court may take into account the safety of the protected witness and the nature of the evidence when deciding whether or not to make an order under subsection (2).
(5) Subsection (1) does not apply unless the necessary audio visual links are available or can reasonably be made available.
pt 3B (ss 31F–31J): Ins 2019 No 20, Sch 1.26.
31H
Proceedings may be moved to allow use of audio visual link
31H Proceedings may be moved to allow use of audio visual link
31H Proceedings may be moved to allow use of audio visual link
(1) If the court is not equipped with facilities or technology for the giving of evidence by means of audio visual link, or the court otherwise considers it appropriate, the court may adjourn the relevant proceeding or part of the relevant proceeding to a court or place that is equipped with the facilities or technology to enable a protected witness to give evidence by means of audio visual link.
(2) If a protected witness gives evidence by means of audio visual link from a location outside a court—
(a) the location is taken to be part of the court in which the relevant proceeding is being held, and
(b) the court may order that a court officer, or any other person approved by the court, including a police officer, be present at the location.
pt 3B (ss 31F–31J): Ins 2019 No 20, Sch 1.26.
31I
Use of audio visual link
31I Use of audio visual link
31I Use of audio visual link
An audio visual link used under this Part for the giving of evidence by a protected witness in a relevant proceeding is to be operated in a way that enables the persons who have an interest in the proceeding to see the protected witness on a television monitor.
pt 3B (ss 31F–31J): Ins 2019 No 20, Sch 1.26.
31J
Application of Evidence (Audio and Audio Visual Links) Act 1998
31J Application of Evidence (Audio and Audio Visual Links) Act 1998
Sections 5D, 20D and 20E of the Evidence (Audio and Audio Visual Links) Act 1998 apply to a relevant proceeding in which a protected witness gives evidence by means of audio visual link under this Part in the same way as they apply to proceedings before a NSW court in which evidence is given by means of audio visual link under that Act.
pt 3B (ss 31F–31J): Ins 2019 No 20, Sch 1.26.
Part 4
Miscellaneous
Part 4 Miscellaneous
Part 4 Miscellaneous
32
Offence—disclosures concerning participants
32 Offence—disclosures concerning participants
32 Offence—disclosures concerning participants
A person must not, except in accordance with this Act or a complementary witness protection law, or in accordance with an order of the Supreme Court under section 34, disclose information—
(a) about the identity or location of a person who is or has been—
(i) a participant, or
(ii) a person on a witness protection program conducted by the Commonwealth, another State or a Territory under a complementary witness protection law, or
(b) that compromises the security of such a person.
Maximum penalty on indictment: imprisonment for 10 years.
s 32: Am 2002 No 54, Sch 1 [34].
33
Offence—disclosure by participants and others
33 Offence—disclosure by participants and others
33 Offence—disclosure by participants and others
(1) A person must not, either directly or indirectly, disclose or record—
(a) the fact that the person, or a person with whom the person is associated, has entered into a memorandum of understanding, or
(b) details of a memorandum of understanding, or
(c) the fact that the person is or was a participant in the witness protection program, or
(d) confidential information relating to the witness protection program.
Maximum penalty—imprisonment for 5 years.
(1A) Subsection (1)(c) does not apply to a person if—
(a) the person has a reasonable excuse for recording or disclosing the fact, and
(b) the reasonable excuse relates to a health or safety risk.
(1B) For subsection (1A)(a) and (b), the onus of proof lies with the person seeking to rely on the exemption.
(2) This section does not apply to a disclosure or recording—
(a) that has been authorised by the Commissioner of Police, or
(b) that is necessary for the purposes of an investigation by the Commission or the Inspector, or
(c) that is necessary to comply with an order of the Supreme Court.
(3) In this section—
confidential information, in relation to the witness protection program, means the following—
(a) information relating to a thing done by the Commissioner of Police or another member of the NSW Police Force under this Act,
(b) information about how the witness protection program operates,
(c) information relating to the identity of a member of the NSW Police Force who is or has been involved in the witness protection program.
person means the following—
(a) a participant,
(b) a former participant,
(c) a witness who is being, or has been, assessed for inclusion in the witness protection program.
s 33: Am 2002 No 54, Sch 1 [35] [36]; 2011 No 62, Sch 3.42; 2016 No 61, Sch 6.47 [7]; 2024 No 89, Sch 1[36] [48]–[50].
34
Certain persons not to be required to disclose information
34 Certain persons not to be required to disclose information
34 Certain persons not to be required to disclose information
(1) This section applies to a person who is or has been—
(a) the Commissioner of Police, or
(b) a member of the NSW Police Force, or
(c) the Registrar of Births, Deaths and Marriages, or
(h) a member of the staff of an approved authority, or
(i) a person or body (or an employee of a person or body) providing services to or for a participant at the request of the Commissioner of Police.
(2) Unless the Supreme Court makes an order that provides to the contrary, or the proceedings relate to an offence under this Act, a person to whom this section applies cannot be required in any proceedings in a court, tribunal or a Royal Commission or other commission of inquiry to produce any document or to divulge or communicate any matter or thing relating to the exercise of functions under this Act or the protection of witnesses included in the witness protection program.
s 34: Am 2002 No 54, Sch 1 [37] [38]; 2011 No 62, Sch 3.42; 2016 No 61, Sch 6.47 [8]; 2024 No 89, Sch 1[51].
35
Restriction on issue of New South Wales identity documents
35 Restriction on issue of New South Wales identity documents
35 Restriction on issue of New South Wales identity documents
(1) New South Wales identity documents must not be issued for a person who is on a witness protection program being conducted by the Commonwealth, another State or a Territory unless—
(a) an arrangement is in force between the Minister and the relevant Commonwealth, State or Territory Minister relating to the issue of New South Wales identity documents for the purposes of that program, and
(b) a complementary witness protection law is in force in the Commonwealth, State or Territory.
(2) Without limiting the matters to which such an arrangement may relate, an arrangement may relate to—
(a) the procedures to be adopted for requesting the issue of New South Wales identity documents for the purposes of such a program, and
(b) guidelines for the issue of those documents and other documents.
36
Arrangements with approved authorities
36 Arrangements with approved authorities
36 Arrangements with approved authorities
(1) The Commissioner of Police may make arrangements with an approved authority about any matter in connection with the administration of a complementary witness protection law.
(2) Without limiting the coverage of those arrangements, they—
(a) may provide for the Commissioner of Police or a member of the NSW Police Force to exercise functions conferred by a complementary witness protection law, and
(b) must include procedures under which the authority shares with the State the costs incurred under those arrangements, and
(c) may provide for the authority to make available to the Commissioner of Police such statements, transcripts of evidence and other documents as will assist the Commissioner in deciding—
(i) whether to provide protection or assistance to a person under this Act, and
(ii) what protection and assistance are appropriate for a person, and
(d) may confer functions under complementary witness protection laws on the Commissioner of Police.
s 36: Am 2011 No 62, Sch 3.42.
37
Authorisation of approved authorities
37 Authorisation of approved authorities
37 Authorisation of approved authorities
The Minister, by notice published in the Gazette, may authorise an approved authority to exercise functions conferred on the Commissioner of Police under this Act for the purposes of any arrangement entered into by the Commissioner under section 36 or the corresponding provision of a complementary witness protection law.
38
Provision of information to approved authorities
38 Provision of information to approved authorities
38 Provision of information to approved authorities
(1) If—
(a) a participant has been provided with a new identity or relocated under this Act, and
(b) an approved authority notifies the Commissioner of Police that the participant is under investigation for, or has been arrested for or is charged with, an offence against a law of New South Wales, the Commonwealth, another State or a Territory, the maximum penalty for which is or includes imprisonment for a period of more than one year,
the Commissioner of Police may do any one or more of the things in subsection (2).
(2) If subsection (1) applies, the Commissioner of Police may—
(a) release to the approved authority the new identity or location of the participant,
(b) provide the approved authority with the criminal record and the fingerprints of the participant,
(c) release to the approved authority such other information relating to the participant as the Commissioner of Police considers appropriate in the circumstances,
(d) if the Commissioner of Police considers it appropriate in the circumstances, allow officers of the approved authority to interview members of the NSW Police Force in relation to the participant.
(3) In this section—
participant includes a former participant.
s 38: Am 2011 No 62, Sch 3.42; 2024 No 89, Sch 1[10] [52].
38A
Confidential documents to be kept and handled securely
38A Confidential documents to be kept and handled securely
38A Confidential documents to be kept and handled securely
(1) This section applies if an agency is in possession of confidential documents.
(2) The agency must take reasonable steps to ensure the confidential documents are kept and handled securely in accordance with—
(b) any requirements prescribed by the regulations.
(3) In this section—
confidential document means a document containing information relating to the witness protection program.
s 38A: Ins 2024 No 89, Sch 1[53].
39
Delegation
39 Delegation
39 Delegation
(1) The Commissioner of Police may delegate all or any of his or her functions under this Act, other than this power of delegation, to a member of the NSW Police Force who holds or occupies a designated position.
(2) A member of the NSW Police Force who holds or occupies a designated position may exercise functions delegated to the member by the Commissioner of Police under a complementary witness protection law.
s 39: Am 2011 No 62, Sch 3.42.
40
Immunity from legal proceedings for exercise of functions under Act
40 Immunity from legal proceedings for exercise of functions under Act
40 Immunity from legal proceedings for exercise of functions under Act
A person is not liable to any action, suit or proceedings (including criminal proceedings) in respect of an act done or omitted to be done by the person in good faith in the exercise or purported exercise of a function conferred by or under this Act (including an order of the Supreme Court under this Act).
s 40: Am 2002 No 54, Sch 1 [39].
41
Proceedings for offences
41 Proceedings for offences
41 Proceedings for offences
(1) Proceedings for an offence against this Act, except section 32, are to be dealt with summarily before the Local Court.
(2) Chapter 5 of the Criminal Procedure Act 1986 (which relates to the summary disposal of certain indictable offences unless an election is made to proceed on indictment) applies to and in respect of an offence under section 32.
s 41: Am 1999 No 94, Sch 4.64; 2001 No 121, Sch 2.201 [1] [2]; 2007 No 94, Sch 2.
42
Regulations
42 Regulations
42 Regulations
The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
43
Exclusion of provisions of Births, Deaths and Marriages Registration Act 1995
43 Exclusion of provisions of Births, Deaths and Marriages Registration Act 1995
s 44: Am 1996 No 29, Sch 6.7; 2012 No 66, Sch 5.16 [2].
45
Special provisions for former participants in NSW Police Witness Protection Plan
45 Special provisions for former participants in NSW Police Witness Protection Plan
45 Special provisions for former participants in NSW Police Witness Protection Plan
Despite section 17, the Supreme Court is not required to be satisfied of the matters referred to in section 17 (b), (c) and (d) before making a witness protection order if satisfied that—
(a) the person named in the application as a witness is a former participant in the New South Wales Police Witness Protection Plan in force before the commencement of section 5 or a person who, because of the person’s association with a former participant in that Plan, may require protection or other assistance under this Act, and
(b) the order is sought for the purpose of confirming an identity established while that Plan was in operation.
s 45: Rep 1999 No 85, Sch 4. Ins 2006 No 107, Sch 1.23. Am 2024 No 89, Sch 1[54].
46
Savings, transitional and other provisions
46 Savings, transitional and other provisions
46 Savings, transitional and other provisions
Schedule 1 has effect.
47
Review of Act
47 Review of Act
47 Review of Act
(1) The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.
(2) The review is to be undertaken as soon as possible after the period of 5 years from the date of assent to this Act.
(3) A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 5 years.
Schedule 1
Savings, transitional and other provisions
Schedule 1 Savings, transitional and other provisions
Schedule 1 Savings, transitional and other provisions
(Section 46)
sch 1: Am 2002 No 54, Sch 1 [40]–[42]; 2016 No 61, Sch 6.47 [9] [10].
Source text: opening excerpt
Sourced from legislation.nsw.gov.au, CC BY 4.0.
Part 1 Preliminary
Part 1 Preliminary
Part 1 Preliminary
1 Name of Act
1 Name of Act
1 Name of Act
This Act is the Witness Protection Act 1995.
2 Commencement
2 Commencement
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Definitions
3 Definitions
3 Definitions
(1) In this Act—
agency—see section 4A.
approved authority means—
(a) the Commissioner of the Australian Federal Police, or
(b) a Commissioner (however designated) of the police force of another State or a Territory, or
(c) the Chief Executive Officer of the Australian Crime Commission, or
(d) the Commissioner of the New South Wales Crime Commission, or
(e) an authority or body of the Commonwealth, another State or a Territory that—
(i) is authorised to conduct inquiries or investigations in relation to conduct that constitutes, or is alleged to constitute, criminal conduct, misconduct or corruption, and
(ii) is declared by the Minister by order published in the Gazette to be an approved authority for the purposes of this Act.
Commission means the Law Enforcement Conduct Commission.
communications includes any transmission of information.
complementary witness protection law means a law of the Commonwealth, another State or a Territory that—
(a) makes provision for the protection of witnesses, and
(b) is declared by the Minister by order published in the Gazette to be a complementary witness protection law.
Editorial note.
For declarations under this definition see the Historical notes at the end of this Act.
designated authority for a complementary witness protection law means the approved authority exercising functions under that law that is declared by the Minister by order published in the Gazette to be the designated authority for that law.
Termination and suspension are tightly regulated. Voluntary termination occurs on written request (s 11(1)). Involuntary termination or suspension is permitted on grounds including deliberate breach of the MOU, conduct threatening program integrity, changed circumstances, or imprisonment that prevents adequate protection (s 11(2)). A new s 11A permits suspension for a “reasonable period” where the participant’s actions limit the Commissioner’s ability to provide protection. Detailed notice, internal review, and appeal rights to the Commission are set out in ss 12 and 13, with cascading time limits (2 or 14 days for review, 3 days for appeal) and rules determining when decisions take effect if the participant cannot be located.
Part 3 is the identity-protection engine. The Commissioner may apply to the Supreme Court for a witness protection order (s 15) authorising new entries in the registers of births, deaths and marriages, removal or replacement of identity records held by agencies, and issuance of new documents. Proceedings are closed to the public (s 16). The Court may make the order only if satisfied of five cumulative matters in s 17, including that the person was a witness to an indictable offence, that life or safety is endangered, that an MOU is in place, that the person is likely to comply, and (for removal of records) that there is a risk of linkage between old and new identities. Once made, the order has powerful effects: authorised persons may alter registers (s 18(1)), the Registrar must cooperate, and the Commissioner must keep records of the original identity. A new identity may be changed only twice and only with consent (s 18(2)). Entries have the same legal effect as ordinary register entries (s 19(1)), but can be cancelled only by further Supreme Court order once the person is no longer in the program (s 19(2)).
The 2024 amendments significantly expanded identity-record management. Section 19A allows the Commissioner to request interstate entities to remove or replace identity records where linkage risk exists. Section 19B requires the Commissioner to retain removed records if requested, for later restoration of the previous identity. Section 13A defines “former participant” for the purposes of these provisions. Restoration of previous identity is a discretionary power of the Commissioner (s 21), subject to review rights and an obligation to return identity documents (maximum penalty 10 penalty units).
Special rules govern marriage (s 20), use of old documents while new entries remain (s 22), and non-disclosure of information about register entries (s 23, 10-year maximum imprisonment). Participants are relieved from disclosing their previous identity where the Commissioner has granted permission in the prescribed form (s 24). In legal proceedings, courts must suppress identity where it is in issue (s 26), subject to the more detailed regime in the newly inserted Part 3A.
Part 3A, inserted in 2002, requires a protected person involved in a “relevant proceeding” (court, coronial inquest, Crime Commission hearing, Law Enforcement Conduct Commission hearing) to notify the Commissioner (s 31B(1A), 50 penalty unit maximum). The Commissioner must issue a non-disclosure certificate stating that the person is in the program, has a new identity, has limited criminal history, and is entitled to give evidence by audio visual link (s 31C). The certificate triggers absolute prohibitions on questions, evidence or statements that could reveal the protected identity or current location (s 31D), subject to the court’s power to grant leave under s 31E where credibility is genuinely in issue and it is in the interests of justice. Leave applications are heard in closed court and, if granted, trigger further suppression orders (maximum penalty for breach 50 penalty units or 12 months imprisonment).
Part 3B, inserted in 2019, gives protected witnesses an entitlement to give evidence by audio visual link (s 31G(1)), subject to the court’s power to order otherwise if not in the interests of justice (s 31G(3)). Proceedings may be moved to venues with appropriate technology (s 31H), and the link must allow interested persons to see the witness on a monitor (s 31I). The Evidence (Audio and Audio Visual Links) Act 1998 provisions on technical requirements apply (s 31J).
Part 4 contains offences (ss 32, 33), immunities (s 40), interaction with other laws (ss 35, 43, 44), and regulation-making power. Section 32 creates an indictable offence (10 years) of unauthorised disclosure of a participant’s identity or location. Section 33 creates a 5-year offence for participants themselves disclosing their status or program information, with a new 2024 health-and-safety reasonable-excuse carve-out that places the onus on the defendant (s 33(1B)). Agencies must handle confidential documents securely in accordance with Privacy and Personal Information Protection Act 1998 principles and any regulations (s 38A, inserted 2024).
The Act’s savings and transitional provisions in Schedule 1 preserve the pre-1995 NSW Police Witness Protection Plan and deal with the phased introduction of the 2002 and 2016 amendments.
Who it affects
The Act’s primary beneficiaries are “participants”—witnesses included in the program on a temporary or permanent basis (s 3(1)). The definition of “witness” in s 4 is deliberately broad: it covers Crown witnesses in criminal proceedings or serious crime prevention order applications, persons who have given evidence or statements about offences against any Australian law, and anyone who “for any other reason” may require protection. Associates of such persons are also covered (s 4(2)). “Former participants” are brought within the Act’s secrecy and identity-restoration rules by the 2024 amendments (s 13A and s 24(6)).
The Commissioner of Police is the central decision-maker and duty-bearer. Functions may be delegated only to members in “designated positions” (s 39). “Approved authorities” (federal and interstate police commissioners, ACC, NSW Crime Commission, and other declared investigative bodies) may request inclusion of witnesses and enter cost-sharing arrangements (ss 6(1), 36). “Designated authorities” under complementary witness protection laws may themselves apply for Supreme Court orders (s 15(3)(b)).
Agencies as newly defined in s 4A (government sector agencies, statutory bodies, State-owned corporations, local councils, courts, tribunals, and prescribed private bodies) are subject to duties concerning identity records (s 15(1)(b)), secure document handling (s 38A), and the legal-personality rule in s 4B that channels statutory functions to the “head” of the agency.
Protected persons who become involved in “relevant proceedings” (Part 3A and 3B) owe notification duties (s 31B(1A)) and are entitled to non-disclosure certificates and audio-visual evidence. The Registrar of Births, Deaths and Marriages must give access to registers and implement court-ordered changes (s 18(1)(b)) but may cancel entries only on further court order (s 19(2)).
Courts, tribunals, Royal Commissions and the Law Enforcement Conduct Commission must apply the closed-hearing, suppression and non-disclosure certificate rules (ss 16, 26, 31D, 31E). The Commission itself determines appeals against exclusion or termination decisions (ss 6(4), 12(5)).
Participants’ family members, spouses, legal representatives and service providers are indirectly affected through MOU obligations concerning family maintenance, marriage and confidentiality. Offenders or litigants seeking to enforce pre-existing debts against a participant may find the Commissioner interposed (ss 29, 30).
Key duties and rights
The Commissioner’s key duties include assessing suitability (s 7), ensuring MOUs contain mandatory warnings (s 8(3)), notifying participants of termination or suspension decisions (s 12(1)), maintaining records of original identities (s 18(1)(c)), and preserving removed identity records when requested (s 19B(3)). The Commissioner must also take reasonable steps to deal with a participant’s pre-existing legal obligations (s 29(1)).
Participants have the right to refuse inclusion, to appeal exclusion within 3 days to the Commission (s 6(4)), to seek internal review and Commission appeal of termination or suspension decisions (s 12), and to complain to the Commission about police conduct (s 8(3)). Once included, they have a right to protection measures the Commissioner considers necessary and reasonable (s 5(1)), an entitlement to give evidence by audio visual link (s 31G(1)), and protection from disclosure of their protected identity in proceedings unless the court grants leave under s 31E after a high-threshold test.
Protected persons must comply with MOU terms (s 8(1)(b)), notify the Commissioner of involvement in relevant proceedings (s 31B(1A)), and return identity documents on restoration of previous identity (s 21(5)). They are prohibited from marrying without satisfying identity and marital-status evidence requirements (s 20) and from using old register-based documents while new entries remain (s 22).
Agencies and interstate entities must respond to court orders or Commissioner requests to remove or replace identity records (ss 15, 19A) and keep confidential documents secure (s 38A). The Registrar of Births, Deaths and Marriages has a statutory duty to assist authorised persons and implement court orders (s 18(1)(b)).
The Supreme Court’s rights and duties are prescriptive: it must conduct closed hearings (s 16), may make witness protection orders only on satisfaction of the s 17 criteria, and may grant leave to disclose protected identity only where credibility is genuinely in issue, it is in the interests of justice, and testing credibility would otherwise be impractical (s 31E(4)).
Penalties and enforcement
The Act creates a tiered penalty regime. The most serious offence is unauthorised disclosure of a participant’s identity or location (s 32), punishable on indictment by 10 years imprisonment. The same maximum applies to unauthorised recording or disclosure of information about register entries (s 23(1)). Participants who disclose their own status or program information face 5 years imprisonment (s 33(1)), although a 2024 amendment introduced a health-or-safety reasonable-excuse defence with reverse onus (s 33(1A)–(1B)).
Lower-level offences include marrying without satisfying s 20 requirements (5 penalty units or 6 months), using old register-based documents (s 22, 10 penalty units), failing to return identity documents on restoration (s 21(5), 10 penalty units), and failing to notify the Commissioner of involvement in a relevant proceeding (s 31B(1A), 50 penalty units). Breaching a suppression order made after leave is granted under s 31E(6) carries 50 penalty units or 12 months imprisonment or both (s 31E(7)).
Enforcement is primarily criminal. Proceedings for all offences except s 32 are summary (s 41(1)); s 32 is dealt with under Chapter 5 of the Criminal Procedure Act 1986 (election for indictment). The Commissioner may also terminate or suspend protection for MOU breaches (s 11(2)(a)), and may inform creditors of a participant’s previous identity where the new identity is being used to avoid obligations (s 30(3)).
Civil immunity is conferred by s 40 on anyone acting in good faith in the exercise of functions under the Act, including Supreme Court orders. The Act does not create private rights of action; protection is administrative and prosecutorial.
How it interacts with other laws
The Act is designed to operate alongside complementary witness protection laws declared by the Minister (s 3(1)). Arrangements with approved authorities under such laws are expressly authorised (s 36), and designated authorities under those laws may apply for NSW Supreme Court orders (s 15(3)(b)). Section 24(4) gives participants the benefit of non-disclosure permissions granted under complementary laws.
Heavy interaction occurs with the Births, Deaths and Marriages Registration Act 1995. Sections 18 and 19 treat court-ordered entries as valid for all purposes, but exclude the operation of Divisions 4 and 5 of Part 3, Part 5 and s 59(2) of that Act (s 43). The Registrar is under a positive duty to assist (s 18(1)(b)) yet can cancel entries only on further court order (s 19(2)).
The Law Enforcement Conduct Commission Act 2016 is woven throughout. The Commission hears appeals against exclusion and termination decisions (ss 6(4), 12(5)) and is one of the protected recipients of communications monitoring (s 9A(2)(b)). Investigations by the Commission or its Inspector are express exceptions to the non-disclosure offences in ss 23, 32 and 33.
Part 3A and 3B intersect with the Coroners Act 2009, Crime Commission Act 2012, Royal Commissions Act 1923 and Special Commissions of Inquiry Act 1983 by including their proceedings within “relevant proceedings” that trigger non-disclosure certificates and AVL entitlements.
The Privacy and Personal Information Protection Act 1998 principles are imported into the new secure-handling obligation in s 38A. The Confiscation of Proceeds of Crime Act 1989 is disapplied to amounts certified by the Commissioner as program payments (s 31(2)).
The Act expressly preserves other witness-protection provisions in the Crime Commission Act 2012 s 44, the (repealed) Independent Commission Against Corruption Act 1988 s 50, and certain royal commission statutes (s 44).
Recent changes and why
The most significant recent changes are contained in the Justice Legislation Amendment Act 2024 No 89, which inserted or amended more than 30 provisions. The stated driver was to modernise identity management in an era of digital records and inter-jurisdictional information sharing.
Key insertions include:
Definitions of “agency” (s 4A) and the legal-personality rule (s 4B) to ensure functions can be performed by non-human entities.
Expanded assessment criteria and MOU contents to include communication monitoring (ss 7, 8(2)(c2), new s 9A). The monitoring power is limited to non-privileged communications and recordings cannot be used against third parties.
Detailed rules for removal, replacement and retention of identity records held by agencies and interstate entities (new ss 19A, 19B, amendments to ss 14, 15, 17, 18, 19, 21, 23, 24, 28, 30, 38).
New secure-handling obligation for agencies (s 38A).
Updated non-disclosure certificate content to reference the AVL entitlement (s 31C(1)(d)).
Clarification that the health-and-safety reasonable excuse applies to participant non-disclosure offences (s 33(1A)–(1B)).
Amendment to the transitional provision for former NSW Police Witness Protection Plan participants (s 45).
These changes respond to practical difficulties revealed by operational experience: linkage risks in digital databases, the need for interstate cooperation, the Commissioner’s inability to retain records without a statutory hook, and the tension between participant privacy and agency record-keeping obligations. The 2019 insertion of Part 3B (via the Justice Legislation Amendment Act 2019 No 20) was a response to the practical difficulty of protecting witnesses who must give evidence in an era of increased remote-hearing technology.
Court challenges and controversies
Although the Act itself has not generated a large body of reported case law, the principles it embodies have been tested in several contexts. The Supreme Court’s power to make witness protection orders under s 17 is conditioned on satisfaction of cumulative jurisdictional facts; a 2002 amendment tightened the criteria to require an MOU and likely compliance, reflecting concern that orders had been sought in marginal cases.
The non-disclosure certificate regime in Part 3A has been the subject of procedural disputes. Courts have emphasised that the certificate does not create an absolute shield; s 31E requires a structured leave process once credibility is genuinely put in issue. In practice, trial judges have been reluctant to grant leave where the protected person is a peripheral witness, citing the statutory presumption in favour of non-disclosure.
Controversy has surrounded the balance between witness safety and an accused’s right to a fair trial. Defence counsel have argued that the inability to probe a protected witness’s true identity impairs cross-examination on credibility. The statutory response in s 31E(4) (requiring evidence that, if believed, would call credibility into question, that it is in the interests of justice, and that testing would otherwise be impractical) reflects a legislative judgment that mere speculation is insufficient. No reported decision has yet struck down the regime on constitutional grounds, but the issue remains live in high-stakes organised-crime trials.
The 2024 amendments allowing monitoring of participant communications (s 9A) have attracted criticism from civil-liberties groups on privacy grounds. The statute counters this by excluding privileged communications, prohibiting use of material against third parties, and preserving the general prohibition on interception of telecommunications (s 9A(4)).
Administrative-law challenges to Commissioner decisions to terminate protection have been channelled through the statutory review and Commission appeal mechanisms. The Commission’s power to “make any decision that could have been made by the Commissioner” (ss 6(4), 12(5)) has been interpreted as conferring a full merits review, reducing the scope for judicial review.
Gotchas
Most practitioners do not realise that a participant’s MOU can lawfully authorise ongoing monitoring of communications with anyone except lawyers, Commission staff, the Inspector or police misconduct investigators (s 9A(2)). A recording lawfully obtained under the MOU cannot be used in proceedings against any person other than the participant, but the participant themselves may face termination for breach.
Another trap is the interaction between s 19(2) and s 21. Once an entry is made in a register, it can be cancelled only by Supreme Court order after the Court is satisfied the person is no longer in the program. The Commissioner’s discretionary decision to restore a former participant’s previous identity (s 21(1)) does not automatically cancel the register entry; a separate application under s 19(1A) is required. Failure to obtain that order leaves the former participant with two conflicting official identities.
The reverse onus in the new s 33(1B) is easily overlooked. A participant who discloses their status on social media claiming a mental-health crisis bears the legal burden of proving both the reasonable excuse and that it relates to a health or safety risk.
Section 31B(2A) permits the Commissioner to give a non-disclosure certificate to the court before proceedings commence and in the absence of the parties. Many judges are unaware of this power and insist on an inter partes hearing, which itself risks compromise of the protected identity.
Finally, the immunity in s 40 is broader than many realise. It covers “an act done or omitted to be done … in good faith in the exercise or purported exercise of a function”. The phrase “purported exercise” has been held in analogous contexts to protect even ultra vires acts provided good faith is present. However, deliberate fabrication of identity documents beyond what is authorised by a court order would likely fall outside the protection.
How to comply
For the Commissioner and NSW Police Force, compliance begins with a robust assessment process that documents each of the s 7 factors and records why viable alternatives were rejected. Every MOU must contain the mandatory elements in s 8(1) and (3) and should be signed only in the presence of a designated-position officer (s 8(4)). Decisions to terminate or suspend must be notified in accordance with s 12(1), and the layered review rights must be scrupulously observed; failure to give the participant a reasonable opportunity to state their case invalidates the internal review (s 12(3)(b)).
When applying for a witness protection order, evidence must be led on each of the five s 17 matters. For removal of an identity record, specific evidence of linkage risk is now required (s 17(e)). The Commissioner must maintain records of original identities (s 18(1)(c)) and must retain removed records if an authorised person or interstate entity so requests (s 19B(3)).
Agencies suddenly finding themselves in possession of a confidential document must immediately implement secure storage and handling practices that satisfy both Privacy and Personal Information Protection Act 1998 s 12 principles and any regulatory requirements (s 38A). Interstate entities receiving a s 19A request should treat it as a formal statutory requirement rather than a discretionary favour.
Legal practitioners appearing in matters where a non-disclosure certificate has been or may be issued must understand that questions going to protected identity or current location are prima facie prohibited (s 31D). Any application for leave under s 31E must be supported by concrete evidence that, if accepted, would impeach credibility; fishing expeditions will fail. Where leave is granted, practitioners must comply with the court’s suppression orders or face personal liability under s 31E(7).
Participants themselves must treat the MOU as a binding contract whose breach can lead to immediate termination. They should notify the Commissioner the moment they are subpoenaed or otherwise drawn into any court, coronial, commission or Law Enforcement Conduct Commission proceeding. Marriage, entering contracts that require identity verification, or posting on social media all require prior consultation with the assigned protection officer.
Organisations that may become “agencies” under the expanded s 4A definition should review their record-keeping systems to ensure they can promptly locate and deal with any identity records the subject of a court order or Commissioner request. Human-resources and IT departments need training on the absolute prohibition on disclosure (s 23) and the secure-handling obligation (s 38A).
In all cases, the safest course is to assume that once a person is or has been in the program, their previous identity is radioactive. Any decision to disclose it should be taken only after obtaining written authorisation from the Commissioner or a Supreme Court order, and only after confirming that the proposed disclosure falls squarely within one of the statutory exceptions in ss 23, 32 or 34.
For declarations under this definition see the Historical notes at the end of this Act.
designated position means a position of a member of the NSW Police Force that has been declared in writing by the Commissioner of Police to be a designated position for the purposes of this Act.
document includes the following—
(a) a biometric record,
(b) an educational record,
(c) a legal record,
(d) a medical record.
exercise a function includes perform a duty.
former participant, for Part 3—see section 13A.
function includes a power, authority or duty.
identity record means a document that may assist in identifying a person, other than a document forming part of the Births, Deaths and Marriages Register.
Note—
The Births, Deaths and Marriages Register is the register maintained under the Births, Deaths and Marriages Registration Act 1995, section 43.
Inspector has the same meaning as in the Law Enforcement Conduct Commission Act 2016.
interstate entity means a person or body in a State or Territory other than New South Wales.
participant means a witness who is included in a witness protection program, whether temporarily or otherwise.
register of births means the register maintained under the Births, Deaths and Marriages Registration Act 1995 in which births are registered.
register of deaths means the register maintained under the Births, Deaths and Marriages Registration Act 1995 in which deaths are registered.
register of marriages means the register maintained under the Births, Deaths and Marriages Registration Act 1995 in which marriages are registered.
witness has the meaning given by section 4.
witness protection order means an order of the Supreme Court referred to in section 15.
witness protection program means a witness protection program established and maintained under section 5.
(2) Notes in the text of this Act do not form part of this Act.
s 3: Am 1996 No 104, Sch 2.5; 2002 No 54, Sch 1 [1]; 2003 No 13, Sch 1.35; 2004 No 55, Sch 2.45; 2011 No 62, Sch 3.42; 2016 No 61, Sch 6.47 [1]; 2024 No 89, Sch 1[1]–[4].
4 Meaning of “witness”
4 Meaning of “witness”
4 Meaning of “witness”
(1) For the purposes of this Act, a witness is—
(a) a person who has given, or agreed to give, evidence on behalf of the Crown in—
(i) proceedings for an offence, or
(ia) proceedings relating to an application for a serious crime prevention order under the Crimes (Serious Crime Prevention Orders) Act 2016, or
(ii) hearings or proceedings before an authority that is declared by the Minister by order published in the Gazette to be an authority to which this paragraph applies, or
(b) a person who has given, or agreed to give, evidence otherwise than as mentioned in paragraph (a) in relation to the commission or possible commission of an offence against a law of New South Wales, the Commonwealth, another State or a Territory, or
(c) a person who has made a statement to the Commissioner of Police, another member of the NSW Police Force or an approved authority in relation to an offence against a law of New South Wales, the Commonwealth, another State or a Territory, or
(d) a person who, for any other reason, may require protection or other assistance under this Act.
(2) A person is taken to be a witness for the purposes of this Act if the person, because of the person’s association with a person to whom subsection (1) applies, may require protection or other assistance under this Act.
s 4: Am 2011 No 62, Sch 3.42; 2024 No 89, Sch 1[5]–[7].
4A Meaning of “agency”
4A Meaning of “agency”
4A Meaning of “agency”
(1) For this Act, an agency means the following—
(a) a government sector agency within the meaning of the Government Sector Employment Act 2013,
(b) a statutory body representing the Crown,
(c) a State owned corporation or subsidiary of a State owned corporation,
(d) a local government authority,
(e) a court or tribunal,
(f) a body, whether incorporated or unincorporated, established for a public purpose under an Act or statutory instrument,
(g) a person or body, or a class of persons or bodies, whether public or private, prescribed by the regulations to be an agency for this Act.
(2) In this section—
local government authority means the following under the Local Government Act 1993—
(a) a council,
(b) a county council,
(c) a joint organisation.
s 4A: Ins 2024 No 89, Sch 1[8].
4B Legal personality and responsibilities of heads of agencies and interstate entities
4B Legal personality and responsibilities of heads of agencies and interstate entities
4B Legal personality and responsibilities of heads of agencies and interstate entities
(1) If this Act confers or imposes a function on an agency or interstate entity that the agency or entity is incapable of exercising because the agency or entity is not a person, the function is taken to be conferred or imposed on the head of the agency or entity.
(2) In this section—
head, of an agency or interstate entity, means the following—
(a) for a government sector agency—the head of the agency under the Government Sector Employment Act 2013,
(b) for another agency or an interstate entity—
(i) the individual who constitutes the agency or entity, or
(ii) the chief executive officer of the agency or entity, or
(iii) the principal officer of the agency or entity, or
(iv) the person responsible for managing the affairs of the agency or entity.
s 4B: Ins 2024 No 89, Sch 1[8].
Part 2 Witness protection program
Part 2 Witness protection program
Part 2 Witness protection program
5 Witness protection program
5 Witness protection program
5 Witness protection program
(1) The Commissioner of Police, through the establishment and maintenance of a witness protection program, is to take such action as the Commissioner thinks necessary and reasonable to protect the safety and welfare of a participant.
(2) That action may include the following—
(a) making arrangements necessary—
(i) to allow the participant to establish a new identity, or
(ii) otherwise to protect the participant,
(b) relocating the participant,
(c) providing accommodation for the participant,
(d) providing transport for the property of the participant,
(e) providing reasonable financial assistance to the participant,
(e1) providing to the participant services in the nature of counselling (such as psychological counselling and drug and alcohol counselling) and vocational training services,
(f) (Repealed)
(g) doing any other things that the Commissioner of Police considers necessary to ensure the safety of the participant.
(3) That action may also include doing things as a result of functions conferred on the Commissioner of Police under a complementary witness protection law.
s 5: Am 2002 No 54, Sch 1 [2] [3]; 2024 No 89, Sch 1[9] [10].
6 Inclusion in the witness protection program
6 Inclusion in the witness protection program
6 Inclusion in the witness protection program
(1) The Commissioner of Police has the sole responsibility of deciding whether to include a witness in the witness protection program, including cases where an approved authority has requested that a witness be included in the program.
(2) A witness may be included in the witness protection program only if—
(a) the Commissioner of Police has decided that the witness be included, and
(b) the witness agrees to be included, and
(c) the witness signs a memorandum of understanding in accordance with section 8 or—
(i) if the witness is under the age of 18—a parent or guardian of the witness signs the memorandum, or
(ii) if the witness otherwise lacks legal capacity to sign the memorandum—a guardian or other person who is usually responsible for the care and control of the witness signs the memorandum.
(3) If the Commissioner decides not to include a witness in the witness protection program, the Commissioner must inform the witness of the witness’s rights under subsection (4).
(4) A witness may appeal to the Commission within 3 days after being informed of a decision not to include the witness in the witness protection program. The Commission must determine the appeal within 7 days after the appeal is received. The Commission, in determining the appeal, may make any decision that could have been made by the Commissioner and the Commission’s determination has effect according to its tenor.
(5) Subsections (3) and (4) have effect despite subsections (1) and (2).
(6) If—
(a) a parent or guardian of a witness signs a memorandum of understanding because the witness was under the age of 18, and
(b) the memorandum is still operating after the witness turns 18,
the Commissioner of Police may require the witness to sign the memorandum.
s 6: Am 2002 No 54, Sch 1 [4]; 2016 No 61, Sch 6.47 [2].
7 Assessing witness for inclusion in witness protection program
7 Assessing witness for inclusion in witness protection program
7 Assessing witness for inclusion in witness protection program
(1) The Commissioner of Police, in deciding whether to include a witness in the witness protection program, must have regard to—
(a) the seriousness of the offence to which any relevant evidence or statement relates, and
(b) the nature and importance of any relevant evidence or statement, and
(c) the nature of the perceived danger to the witness, and
(d) the nature of the witness’s association with other witnesses being assessed for inclusion in the program, and
(e) if a psychological or psychiatric examination or evaluation of the witness has been conducted to determine the witness’s suitability for inclusion in the program—that examination or evaluation, and
(f) whether there are viable alternative methods of protecting the witness, and
(g) whether the witness has a criminal record, particularly in respect of crimes of violence, and whether that record indicates a risk to the public if the witness is included in the program,
and may have regard to such other matters as the Commissioner of Police considers relevant.
(2) The Commissioner of Police must not include a witness in the witness protection program if the Commissioner does not, in his or her opinion, have enough information to assess the matters referred to in this section in relation to the witness.
s 7: Am 2024 No 89, Sch 1[11].
8 Memorandum of understanding
8 Memorandum of understanding
8 Memorandum of understanding
(1) A memorandum of understanding is to—
(a) set out the basis on which a participant is included in the witness protection program and details of the protection and assistance that are to be provided, and
(b) contain a provision to the effect that protection and assistance under the program may be terminated if the participant deliberately breaches a term of the memorandum of understanding or a requirement or undertaking relating to the witness protection program.
(2) A memorandum of understanding in relation to a participant may also contain provisions relating to any one or more of the following—
(a) any outstanding legal obligations of the participant and how they are to be dealt with,
(b) any legal obligations that the participant may or may not enter into,
(c) the surrender and issue of passports,
(c1) the taking, provision and retention of photographs of the participant,
(c2) the recording or monitoring of the participant’s communications with another person, other than a person referred to in section 9A(2)(a)–(d),
(d) the issue of any documents relating to the new identity of the participant,
(e) the prohibition of the participant from engaging in specified activities,
(f) marriage, family maintenance, taxation, welfare or other social or domestic obligations or relationships,
(g) any other obligations of the participant,
(h) consequences of the participant failing to comply with the provisions of the memorandum of understanding,
(i) any other matter for which it may be necessary or convenient to make provision in the circumstances of the case.
(3) A memorandum of understanding must contain a statement advising the participant of his or her right to complain to the Commission about the conduct of the Commissioner of Police or another member of the NSW Police Force in relation to the matters dealt with in the memorandum.
(4) A memorandum of understanding must be signed by or on behalf of the witness in the presence of a member of the NSW Police Force who holds or occupies a des
This is an opening excerpt, not the complete document.