Page 3852 - Week 09 - Thursday, 25 August 2011
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enable an operative to give evidence under his or her assumed name or a court name;
excuse an operative from stating his or her real name or address during the proceeding; and
prevent the asking of any questions or the making of any statements during the proceeding that may lead to the disclosure of the operative’s real name or where the operative lives.
The primary purpose of the scheme is to protect the personal safety of a witness and others connected to a witness, such as their family members.
The scheme will also enhance the ongoing efficacy of undercover operations. By protecting the true identity of a witness, they are preserved as a useful undercover officer. This encourages police officers to participate in undercover operations as they can be confident that, if necessary, their identity and safety will be protected.
The bill is part of a model legislative scheme and will apply both in the ACT and in other jurisdictions. As such, the bill provides transparency and certainty across jurisdictions as to when operatives’ identities will be protected. It also provides consistency for law enforcement agencies and operatives who operate across borders and will allow for seamless cross-border investigations. The model protection of witness identity legislation has also been adopted in Victoria, Queensland, Tasmania and South Australia and by the commonwealth.
To protect police and other operatives, the bill also creates offences for disclosing information that reveals or is likely to reveal the real identity of an operative covered by a witness identity protection certificate. Where the disclosure occurs in circumstances where a person may be endangered or an investigation prejudiced, the offence is more serious and a higher penalty applies.
The bill also requires that a yearly report be provided to the relevant minister about witness identity protection certificates given during that year, including details of any proceeding in which leave was given to disclose an operative’s identity despite a witness identity protection certificate. A copy of that report will also be tabled in the Legislative Assembly.
The Australian Crime Commission is included in the definition of “law enforcement agency” for the purposes of the bill as the Australian Crime Commission investigates organised crime on a national basis and it is intended that the commission would be able to be involved in relevant cross-border operations. The commission will operate under a combination of existing commonwealth legislation together with relevant state and territory legislation that confers powers, duties and functions on it.
The bill takes into account the significant body of jurisprudence around public interest immunity that already exists in Australia. The common law doctrine of public interest immunity allows for a court to provide for the protection of an undercover police
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