2016-06-09
Ms PENNICUIK (Southern Metropolitan) — The Greens will be supporting the Witness Protection Amendment Bill 2016. This bill has been introduced as a result of the review of the Witness Protection Act 1991 conducted by the Honourable Frank Vincent. The report of that review highlights a number of reforms which are needed to improve both the administration and the external oversight of the system and to better deter witness intimidation. The bill implements all eight of the recommendations of the Vincent review.
Under this revamped scheme the Chief Commissioner of Police will continue to have ultimate responsibility and broad discretion around witness protection arrangements and decision-making. However, this is to be done in reference to the principles and purposes of witness protection, which are outlined in the bill, and with the independent assurance of the Public Interest Monitor that the decisions being made are in the public interest and in accordance with the principles of witness protection.
IBAC will also oversee appropriate record keeping of witness protection files to ensure compliance with the act. The bill will create a new offence of intimidating a witness, with a maximum penalty of 10 years imprisonment. I note that this penalty goes beyond the 5-year maximum that was recommended by the Honourable Frank Vincent in his review, but the government says this is due to the seriousness of witness intimidation.
I take up the point that Ms Shing's was making very eruditely with regard to the summary offence of harassment of witnesses and the common-law offence of intimidation of witnesses and the interplay between the two — there is a quite wide disparity between the two and penalties attached et cetera — and the points that she and Mr O'Donohue were making with regard to the seriousness of the issue that we are dealing with concerning witness protection and people who find themselves, maybe inadvertently, in the position where they are witnesses to a serious crime and may be exposed to such harassment or intimidation. Of course that may extend to harassment and intimidation of their families and/or friends. In fact in many cases that may have more of an intimidatory effect upon them than threats made to or harassment of themselves.
As highlighted in the 2008 United Nations Office on Drugs and Crime report on Good practices for the protection of witnesses in criminal proceedings involving organised crime that the investigation and prosecution of crime requires that witnesses who are the cornerstone for successful investigation and prosecution have trust in the criminal justice system for their own safety and protection in their role as a witness. They must have the confidence that, in coming forward to assist in law enforcement, they will receive support and protection from intimidation and harm.
Also, the rights of witnesses, including the right to life and to not be arbitrarily deprived of life, are recognised in the Victorian Charter of Human Rights and Responsibilities. It is very clear that the review of the Witness Protection Act 1991 by the Honourable Frank Vincent and the various recommendations made by him uphold these rights and recognise the reliance of the criminal justice system on the protection of witnesses in order to function effectively. As he stated in his conclusion, 'No witness equals no case', therefore the community should be willing and should facilitate the provision of financial and other resources necessary for an effective criminal justice system, which includes adequately resourcing witness protection.
One of the issues raised in the Vincent review was that immunity for police officers and other staff under the current act is too broad and should be limited. Such broad immunity can have negative effects, including providing little incentive for police to exercise appropriate care in witness protection, thus depriving people of legal redress if misconduct or breaches occur; and allowing for little external scrutiny over conduct or decisions, and the immunity applies to all conduct under the act, even misconduct, which is a concern.
The Vincent review also highlighted the fact that participants who enter into alternative arrangements outside the act are not given adequate legal protections, and that an independent body to externally monitor the witness protection program would help restore public confidence and the confidence of witnesses in the system.
The review also found that there is currently a lack of appropriate record keeping regarding witness protection by police; that a cultural change also needs to occur within the force since witness protection has not been given appropriate significance; and that witness protection should be more highly valued by those within the police force, which may lead to the resolution of many issues, such as improved governance structures, better record keeping and more effective training for staff who are involved in the witness protection program.
The review recognised that, whilst violence related to organised crime was the original basis for the witness protection legislation, overall there can be much more risk of violence within family relationships. Family violence provides additional and unique challenges to witness protection, and witnesses in such circumstances or cases may also be harassed and intimidated by offenders. Furthermore, the separation of investigative and protective functions is crucial to maintaining the integrity of the process.
Finally, witness intimidation is a far more pervasive problem than is generally recognised in the community. Witness intimidation is not effectively covered by existing offences and the penalties do not reflect the seriousness of the crime of intimidation and harassment of witnesses, as I mentioned earlier. This bill generally implements the recommendations made to deal with these problems that were raised by the Honourable Frank Vincent.
It is also important to acknowledge, as outlined in the review, that a number of non-legislative measures can be used to make it more difficult for those cooperating with police to be identified by those who might do them harm. Anonymous crime reporting services, such as Crime Stoppers, enable people to assist police by providing information without being identified. Police practices can also assist, whereby police frequently use methods to obtain witness statements that do not make the person's cooperation obvious to the offender, neighbours or the surrounding community.
Areas that are more complex and problematic involve police obtaining information from witnesses in prison. Certainly we know of a very high-profile case where perhaps certain care was not taken with regard to that, resulting in the death of a high-profile prisoner a couple of years back. Also, once a matter proceeds to court, the review highlights a number of measures currently used also to assist there.
The review makes eight recommendations to clarify the purposes of the Witness Protection Act. These involve: improving the governance and administration of the witness protection program, promoting community confidence in the program, and deterring witness intimidation. They are quite detailed recommendations. I will not go through them all in full detail, but I will outline some of them, because they are important to put on the record as to why this particular bill is needed to improve the witness protection program and the Witness Protection Act 1991.
The first recommendation goes to the purpose and principles of the act and states that the purpose and principles underpinning the act should be made clear on the face of the legislation, and that the provision of witness protection must be to give practical effect to the rule of the law by as far as reasonably possible protecting those who are exposed to risk of injury or death by reason of their participation in or cooperation with the criminal justice system.
Amongst the detail some important points are made, such as witness protection and support is intended to remove or reduce the barrier to cooperation and is not to be provided as a reward or inducement; protection arrangements need to be tailored to the individual's circumstances and risk faced by the witness and the community; the safety of the witness must take priority over a successful conduct of a prosecution; the interests of children involved in or affected by witness protection arrangements must be separately considered and their welfare a powerful factor in decision-making; and, consistent with the need for operational security, there should be public accountability for the operation of the witness protection system.
These are amongst the key points made in recommendation 1, and I think they are very important to put on the record with regard to the system or the program. I support what Mr O'Donohue was saying, in that very few people have been put in a position where they have to come into contact with the witness protection system. In many cases it involves a complete or significant disruption to their lives, and they may be in that position inadvertently through being a witness to a crime or wrongdoing in the community, so it is very important that all these interests are taken into account.
The second recommendation goes to the extension of the scope of the act and recommends that persons encompassed by the legislation should include people who have reported crimes or otherwise cooperated with authorities in relation to investigations; witnesses in criminal proceedings as well as other proceedings of a related or broadly similar kind, such as IBAC investigations, royal commissions and parliamentary inquiries; those who seek to secure their safety through the justice system — for example, those who are taking out intervention orders; other participants in the justice system, such as police officers, jury members and judicial officers; and/or family members of all of the above, such that the scope of the act should be extended to those entering into what are currently categorised by Victoria Police processes as category B arrangements. This will have the effect that the witness protection principles, external monitoring, reporting and confidentiality provisions in the act apply to the alternative arrangements provided to high-risk witnesses who have been considered for but either declined — as some people may well do — to enter the program or have been considered unsuitable for other various reasons.
Recommendation 3 is that discretion should be maintained by the chief commissioner. Recommendation 4 is about the obligations and protections under the act, and it is that the act be amended to remove the unjustifiably wide immunity presently available for police conduct in relation to witness protection arrangements that I mentioned earlier. Recommendation 5 goes to the rights of protected people such that the act should be amended to ensure that the terms of memoranda of understanding entered into in both category A and category B levels should be legally enforceable by persons entering into them. Recommendation 6 is regarding mandatory case review. To ensure a basic level of active case management, the legislation should require all persons protected under the act to be reviewed at least every two years.
Recommendation 7 goes to the issues of public accountability, monitoring and reporting. To ensure appropriate public accountability, an independent body should monitor the operation of the act to provide assurance that the witness protection principles recommended are given practical effect, and subject to necessary safety and operational caveats, there should be public reporting on the operation of the act. Recommendation 8 is with regard to deterring witness intimidation such that there should be a new indictable offence triable summarily that would cover the range of witness intimidation behaviours addressed in the various interstate provisions and that that offence should have a maximum penalty of 5 years; as we know, the bill makes that penalty 10 years.
With regard to the bill, the bill does the following things. It does clarify that the central objective of witness protection is to give practical effect to the rule of law by, as far as reasonably possible, protecting those exposed to the risk of injury or death due to their participation in or cooperation with the criminal justice system, and that is done by inserting new section 3AAA via clause 5. The bill requires the chief commissioner, police officers and certain other persons to have regard to new witness protection principles when making decisions or taking action under the act. These include that protection and assistance provided to a witness should be tailored to the individual circumstances faced by the witness and the community; that the safety of the witness should take priority over the successful conduct of a prosecution; and that the interests of children involved in or affected by the provision of witness protection and assistance should be separately considered and that their welfare should be a powerful factor in decision-making.
The Scrutiny of Acts and Regulations Committee queried the principle that, as far as practicable, there should be a clear separation of the investigative and protective functions of Victoria Police to be inserted in new section 3AA(2)(b). The minister's response says that this is compatible with the right to a fair hearing because such words recognise the practical limitations that may be present in some places where Victoria Police provides protection to witnesses and their families; because the bill does not alter that discretion of the court to hear, limit or exclude evidence; and because, where a court decides to hear evidence that a witness's evidence has been contaminated, probative value will be apportioned to that evidence in the usual way.
The bill provides that the Public Interest Monitor will ensure that the witness protection principles are being properly considered when decisions are being made. In relation to alternative protection arrangements, the bill expands the scope of the act to include a witness who is facing a high level of risk because of that witness's participation in or cooperation with the criminal justice system and who has been considered for but not provided with the Victorian witness protection program. Clause 12 of the bill inserts new division 3A, which inserts new sections 9O and 9S, and the bill requires the chief commissioner to consider providing these witnesses with alternative protection arrangements, which will extend certain protections to a broader range of witness and so protect them, their families and their children.
The bill ensures that the chief commissioner will be required to review all cases of witness protection under the witness protection program or alternative protection arrangements at least every two years, which is contained in clause 17, which inserts new section 15AA. The chief commissioner will be able to suspend or terminate the provision of protection and assistance under alternative protection arrangements on certain statutory grounds — for example, if a witness committed an offence.
To ensure confidentiality of the scheme, the following measures have also been introduced in the bill: disclosure by a witness or family member concerning a memorandum of understanding is punishable by a maximum of five years imprisonment; disclosure of sensitive protected witness information by any person without lawful authority or, in the case of a witness provided with alternative protection arrangements, without lawful authority or reasonable excuse is punishable by a maximum of 10 years imprisonment; disapplication of the Freedom of Information Act 1982 in respect of sensitive, protected information, under clause 22, to protect those who are in witness protection or alternative arrangements; and the protection of sensitive witness information against disclosure in court proceedings, under clause 14.
The bill amends the Crimes Act 1958 by making it an offence to use intimidation towards or take reprisals against a person known or believed to be involved in a criminal investigation or criminal proceeding — that is, a witness — and this offence, which is inserted by clause 40, is punishable by a maximum of 10 years. This offence will be broad enough to cover witnesses of alleged crimes and their families, jurors and various other people involved in the criminal justice system, such as police officers, legal practitioners and judicial officers, who also may be the subject of harassment and intimidation in criminal proceedings. The offence has safeguards in that it does not apply to conduct engaged in by a person performing certain official duties.
Defences are also available for conduct engaged in without malice in the normal course of a lawful business, industrial disputes, political activities or public affairs communication. The offence also only prohibits association, expression and movement that the person either knows or ought to know would be likely to arouse apprehension or fear in another person.
This is an important piece of legislation to assist in criminal prosecutions as far as is possible following the recommendations made by the Honourable Frank Vincent in his review of the act. It does strengthen the act and, I think, improve the confidence of those who may be called to be witnesses in these types of high-profile cases and who do expose themselves to being intimidated, harassed or threatened. This bill will go a long way to improving the protections provided to such people. For those reasons the Greens will be supporting the bill.