New Witness Protection Amendments Proposed in Victoria

On 26 May 2016, the Witness Protection Amendment Bill 2016 passed the Legislative Assembly and was introduced into the Legislative Council of Victoria. The Bill proposes to extend the scope, improve the governance and administration of protection and assistance provided under the Witness Protection Act 1991 (VIC) (Witness Protection Act) and promote community confidence in its operation and to make consequential amendments to other acts, namely to amend the Crimes Act 1958 (VIC) (Crimes Act) to create a new offence relating to intimidation towards, and reprisals against, witnesses.

Background to the Bill

The Vincent Review of the Witness Protection Act 1991 acquits outstanding recommendations to government from the Office of Police Integrity's 2005 Review of the Victoria Police Witness Protection Program. A public version of the Vincent Review was tabled to coincide with the introduction of this Bill.

Seven of the 8 recommendations in the Vincent Review are directed to legislative reform of the Witness Protection Act. These amendments will improve governance and administration of the witness protection system and promote community confidence in its operation, including by expanding the Act's scope and establishing a framework for independent monitoring and limited public reporting of activity under the Principal Act. The eighth recommendation is for a new offence to deter witness intimidation. The Bill implements those recommendations.

Key Amendments Included in the Bill

According to the Second Reading Speech, currently, in deciding whether to include a witness in the Victorian witness protection program, the chief commissioner must have regard to a non-exclusive list of considerations including:

• The seriousness of the offence;
• The importance of the witness's evidence;
• The witness's criminal history
• A risk assessment;
• Medical or psychological examinations (if required); and
• The availability of viable alternative methods to protect the witness.
• The chief commissioner, however, has a broad discretion whether or not to enter into a witness protection arrangement and what protection measures are provided.

Under the bill, the chief commissioner will retain this broad discretion. However, decision-making will be guided by a clear purpose and new witness protection principles introduced and monitored independently by the Public Interest Monitor.

A key measure in mitigating risk is the person's changed behaviour, combined with relocation and re-identity. Some high-risk witnesses and their family members are either unsuitable or unwilling to make the required behavioural changes to enter the Victorian witness protection program. At present, any alternative arrangements provided to such people occurs outside the act. The bill will also change this.

The bill provides that a witness who has been considered for, but not included in the Victorian witness protection program, and who is at high risk as a result of their cooperation with the criminal justice system may be provided with alternative protection arrangements. These alternative arrangements are provided outside the Victorian witness protection program. Their inclusion in the bill, however, will ensure that the improved governance and accountability framework applies to this high-risk activity.

The bill also strengthens independent monitoring and oversight of decisions and activities under the act by:

• empowering the Public Interest Monitor to provide independent assurance that witness protection decisions are made consistent with the act and in the public interest; and
• empowering the Independent Broad-based Anti-corruption Commission to audit Victoria Police's compliance with record-keeping requirements for witness protection documentation.

The Legislative Council resumes sitting on 7 June 2016.

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