Part 2—General provisions relating to requests by the ICC for cooperation
7 What constitutes a request for cooperation
(1)
(a)
(ii) the identification and whereabouts of a person or the location of items;
(iii) the taking of evidence, including testimony on oath, and the production of evidence, including expert opinions and reports necessary to the ICC;
(iv) the questioning of any person being investigated or prosecuted;
(v) the service of documents, including judicial documents;
(vi) facilitating the voluntary appearance of persons (other than prisoners) before the ICC;
(vii) the temporary transfer of prisoners to the ICC;
(viii) the examination of places or sites;
(ix) the execution of searches and seizures;
(x) the provision of records and documents, including official records and documents;
(xi) the protection of victims or witnesses or the preservation of evidence;
(xii) the identification, tracing, and freezing or seizure, of the proceeds of crimes within the jurisdiction of the ICC for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties; and
(b) any other type of assistance that is not prohibited by Australian law, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the ICC and the enforcement of orders of the ICC made after convictions for such crimes.
Part 4—Other requests by ICC
Division 4—Identifying or locating persons or things
63 Assistance in identifying or locating persons or things
(1) This section applies if:
(a) the ICC requests assistance in locating, or identifying and locating, a person or thing; and
(b) the Attorney-General is satisfied that:
(i) the request relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC; and
(ii) the person or thing is or may be in Australia.
(2) The Attorney-General is to execute the request by authorising, in writing, the making of inquiries for the purpose of locating, or identifying and locating, the person or thing.
(3) If the Attorney-General authorises the making of such inquiries, an appropriate authority is to locate, or identify and locate, the person or thing.
(4) The authority is to notify the Attorney-General of the result of the inquiries.
(5) This section does not give to any person a power to enter premises.
Division 5—Taking evidence or producing documents or articles
64 Attorney-General may authorise taking of evidence or the production of documents or articles
(1) This section applies if:
(a) the ICC requests that:
(i) evidence be taken in Australia; or
(ii) documents or other articles in Australia be produced; and
(b) the Attorney-General is satisfied that:
(i) the request relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC; and
(ii) there are reasonable grounds for believing that the evidence can be taken, or the documents or other articles can be produced, as the case may be, in Australia.
(2) The Attorney-General is to execute the request by authorising, in writing:
(a) the taking of evidence or production of documents or other articles; and
(b) the sending of evidence, documents or other articles to the ICC.
Part 4—Other requests by ICC
Division 5—Taking evidence or producing documents or articles
65 Taking of evidence
(1) If the Attorney-General authorises the taking of evidence, a magistrate:
(a) must give written notice to each person from whom evidence is to be taken stating that the authorisation has been given and setting out the date and time when, and the place where, the evidence is to be taken; and
(b) may take the evidence on oath from each witness appearing before the magistrate to give evidence in relation to the matter.
(2) Evidence from a witness may be taken by means of video or audio technology.
(3) A magistrate who takes any such evidence must:
(a) cause the evidence to be recorded in writing or in any other form that the magistrate considers to be appropriate in the circumstances; and
(b) certify that the evidence was taken by the magistrate; and
(c) cause the writing, or other record of the evidence, so certified to be sent to the Attorney-General.
66 Producing documents or other articles
(1) If the Attorney-General authorises the production of documents or other articles, a magistrate:
(a) must give written notice to each person by whom documents or other articles are to be produced stating that the authorisation has been given and setting out the date and time when, and the place where, the documents or other articles are to be produced; and
(b) may require production of the documents or other articles.
(2) Subject to subsection (3), if the documents or other articles are produced, a magistrate must send them to the Attorney-General together with a written statement certifying that they were produced to that magistrate.
(3) In the case of documents, a magistrate may send to the Attorney-General copies of the documents certified by that magistrate to be true copies.
67 Legal representation
(1) The evidence of a witness may be taken under section 65 in the presence or absence of:
(a) the person to whom the investigation conducted by the Prosecutor, or the proceeding before the ICC, relates; or
(b) his or her legal representative (if any).
(2) The magistrate conducting a proceeding under either section 65 or 66, or both, may permit:
(a) if the person to whom the investigation conducted by the Prosecutor, or the proceeding before the ICC, relates has been notified of the proceeding before the magistrate—that person; and
(b) any other person giving evidence or producing documents or other articles at the proceeding before the magistrate; and
(c) a representative of the Prosecutor or of the ICC; to have legal representation at the proceeding before the magistrate.
68 Form of certificates
A certificate by a magistrate under subsection 65(3) or 66(2) must state whether, when the evidence was taken or the documents or other articles were produced, any of the following persons were present:
(a) the person to whom the investigation conducted by the Prosecutor, or the proceeding before the ICC, relates, or his or her legal representative (if any);
(b) any other person giving evidence or producing documents or other articles, or his or her legal representative (if any).
69 Compellability of persons to attend etc.
(1) Subject to subsections (2) and (3), the laws of each State or Territory with respect to compelling persons:
(a) to attend before a magistrate; and
(b) to give evidence, answer questions, and produce documents or other articles;
on the hearing of a charge against a person for an offence against the law of that State or Territory apply, so far as they are capable of application, with respect to so compelling persons for the purposes of this Division.
(2) For the purposes of this Division, the person to whom the investigation conducted by the Prosecutor, or the proceeding before the ICC, relates, is competent but not compellable to give evidence.
(3) If:
(a) a person is required to give evidence, or produce documents or other articles, for the purposes of an investigation conducted by the Prosecutor or a proceeding before the ICC; and
(b) the person is not compellable to answer a particular question, or to produce a particular document or article, for the purposes of that investigation or proceeding; the person is not compellable to answer the question, or produce the document or article, for the purposes of this Division.
Division 5A—Providing law enforcement agency material
69A Authorising provision of material obtained by law enforcement agencies
(1) The Attorney-General may authorise, in writing, the provision of material to the ICC if:
(a) the ICC has requested the material; and
(b) the Attorney-General is satisfied that:
(i) the request relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC; and
(ii) if the material is or includes lawfully intercepted information or interception warrant information—the investigation is into, or the proceeding relates to, an offence punishable by a maximum penalty of imprisonment for 7 years or more, or imprisonment for life; and
(iii) the material was lawfully obtained in Australia by, and is lawfully in the possession of, a law enforcement agency.
(2) The authorisation may:
(a) specify the uses to which the material can be put by the ICC; and
(b) include a direction to a law enforcement officer of the law enforcement agency about how the material is to be provided to the ICC.
(3) Material lawfully obtained in Australia includes:
(a) material obtained from individuals or entities by consent; and
(b) material obtained by warrant, or the exercise of a coercive power by a court, in Australia for the purposes of a domestic investigation or prosecution.
Division 6—Questioning of person being investigated or prosecuted
70 Assistance in questioning persons
(1) This section applies if:
(a) the ICC requests assistance in questioning a person; and
(b) the Attorney-General is satisfied that:
(i) the request relates to an investigation of the person that is being conducted by the Prosecutor or to a prosecution of the person before the ICC; and
(ii) the person is or may be in Australia.
(2) The Attorney-General is to execute the request by authorising, in writing, the questioning of the person.
(3) If the Attorney-General authorises the questioning of the person, a magistrate is to ask the person in writing to appear before the magistrate at a specified time and place for the purpose of being questioned.
(4) If the person appears before the magistrate:
(a) the magistrate, a police officer or the DPP may ask the person questions to which the request relates; and
(b) the magistrate must cause a record in writing, or in another form that the magistrate considers to be appropriate in the circumstances, to be made of the questions asked and any answers given; and
(c) the magistrate must certify the correctness of the record; and
(d) the magistrate must cause the record so certified to be sent to the Attorney-General.
(5) If the person refuses or fails to appear before the magistrate, the magistrate is to notify the Attorney-General in writing of the refusal or failure.
71 Procedure where person questioned
(1) Before a person is questioned under section 70, the person must be informed that there are grounds to believe that he or she has committed a crime within the jurisdiction of the ICC and that he or she has the following rights:
(a) the right to remain silent without such silence being a consideration in the determination of guilt or innocence;
(b) the right to have legal assistance of his or her choosing or, if he or she does not have legal assistance, to have legal assistance assigned to him or her in any case where the interests of justice so require and without payment by him or her in such a case if he or she does not have sufficient means to pay for the assistance;
(c) the right to have his or her legal representative present when he or she is questioned unless he or she has voluntarily waived that right.
(2) If there is any inconsistency between subsection (1) and any other Australian law, subsection (1) prevails.
(3) This section does not give to any person a power to require anotherperson to answer questions.
Division 7—Service of documents
72 Assistance in arranging service of documents
(1) This section applies if:
(a) the ICC requests assistance in arranging for the service of a document in Australia; and
(b) the Attorney-General is satisfied that:
(i) the request relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC; and
(ii) the person is or may be in Australia.
(2) The Attorney-General is to execute the request by authorising, in writing, the service of the document.
(3) If the Attorney-General authorises the service of the document, an appropriate authority is to:
(a) cause the document to be served:
(i) in accordance with any procedure specified in the request; or
(ii) if that procedure would be unlawful or inappropriate in Australia, or no procedure is specified—in accordance with Australian law; and send to the Attorney-General a certificate stating that the document has been served; or
(b) if the document is not served—send to the Attorney-General a statement of the matters that prevented service.
(4) In this section:
document includes:
(a) a summons requiring a person to appear as a witness; and
(b) a summons to an accused person that has been issued under paragraph 7 of article 58 of the Statute.
(5) If:
(a) a document that is served on a person pursuant to an authority given under this section is a summons referred to in subsection (4); and
(b) the person fails to comply with the summons; the person commits an offence punishable, on conviction, by imprisonment for a period not exceeding 12 months.
Division 8—Facilitating the voluntary appearance of persons (other than prisoners) as witnesses or experts before the ICC
73 Persons (other than prisoners) assisting investigation or giving evidence
(1) This section applies if:
(a) the ICC requests assistance in facilitating the voluntary appearance of a person as a witness or expert before the ICC; and
(b) the Attorney-General is satisfied that:
(i) the request relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC; and
(ii) the person’s appearance is requested so that the person can assist the investigation or give evidence at the proceeding; and
(iii) the person is in Australia and is not a prisoner; and
(iv) the person has consented in writing to assisting the investigation or giving evidence at the proceeding.
(2) The Attorney-General is to execute the request by making arrangements for the travel of the person to the ICC.
Division 9—Temporary transfer of prisoners to the ICC
74 Prisoners assisting investigation or giving evidence
(1) This section applies if:
(a) the ICC requests assistance in facilitating the temporary transfer of a person to the ICC; and
(b) the person is a prisoner who is in Australia (whether or not in custody); and
(c) the Attorney-General is satisfied that:
(i) the request relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC; and
(ii) the prisoner’s attendance is requested for the purpose of assisting the investigation or giving evidence at the proceeding; and
(iii) the prisoner has consented in writing to assisting the investigation or giving evidence at the proceeding; and
(iv) the prisoner will be returned without delay by the ICC to Australia when the purposes of the transfer have been fulfilled.
(2) If the prisoner is being held in custody, the Attorney-General is to execute the request by:
(a) if the prisoner is a federal prisoner and is not also a State prisoner—directing that the prisoner be released from prison for the purpose of travelling to the ICC to assist the investigation or give evidence at the proceeding; or
(b) if the prisoner is a federal prisoner and also a State prisoner—directing, subject to the obtaining of any approvals required to be obtained from an authority of the relevant State, that the prisoner be released from prison for the purpose of such travel; or
(c) if the prisoner is a State prisoner and is not also a federal prisoner—seeking any approvals required to be obtained from an authority of the relevant State; and, in any case, subject to the giving of any necessary directions or the obtaining of any necessary approvals relevant to release of the prisoner, making arrangements for such travel in the custody of a police officer, or prison officer, appointed by the Attorney-General for the purpose.
(3) If the prisoner, having been released from custody on parole, is not being held in custody, the Attorney-General is to execute the request by:
(a) if the prisoner is a federal prisoner and is not also a State prisoner:
(i) approving the travel of the prisoner to the ICC to assist the investigation or give evidence at the proceeding; and
(ii) obtaining such parole decisions as may be required; or
(b) if the prisoner is a federal prisoner and also a State prisoner—subject to the obtaining of any parole decisions required to be obtained from an authority of the relevant State:
(i) approving the travel of the prisoner to the ICC to assist the investigation or give evidence at the proceeding; and
(ii) obtaining such parole decisions as may be required; or
(c) if the prisoner is a State prisoner and is not also a federal prisoner:
(i) approving the travel of the prisoner to the ICC to assist the investigation or give evidence at the proceeding; and
(ii) seeking such parole decisions under the law of the relevant State as may be required; and, in any case, subject to the obtaining of any necessary parole decisions, making arrangements for the travel of the prisoner to the ICC.
(4) In this section:
parole includes any order or licence to be at large.
parole decision means any approval, authority or permission relating to parole, and includes any variation of parole.
Part 4—Other requests by ICC
Division 10—Examination of places or sites
76 Assistance in examining places or sites
(1) This section applies if:
(a) the ICC requests assistance in examining places or sites in Australia; and
(b) the Attorney-General is satisfied that the request relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC.
(2) The Attorney-General is to execute the request by authorising, in writing, the examination of the places or sites.
(3) If the Attorney-General authorises the examination of a place or site, an appropriate authority is to:
(a) examine the place or site in the way sought in the request; and
(b) make such report on the examination as the authority considers appropriate in the circumstances; and
(c) send the report to the Attorney-General.
(4) An authorisation under this section confers power on a person acting under the authorisation to enter a place or site for the purpose of examining it.
Division 10A—Forensic procedures
76A Authorising application for carrying out of forensic procedures
(1) The Attorney-General may authorise, in writing, a constable to apply under Part ID of the Crimes Act 1914 for an order for the carrying out of a forensic procedure on a person if:
(a) the ICC has requested the procedure to be carried out on the person; and
(b) the Attorney-General is satisfied:
(i) that the request relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC; and
(ii) that the person is, or is believed to be, in Australia; and
(iii) that the ICC has given appropriate undertakings about the retention, use and destruction of forensic material, or of information obtained from analysing that material; and
(iv) that the ICC has given any other undertakings that the Attorney-General considers necessary; and
(v) unless subsection (2) applies—that the person has been given an opportunity to consent to the forensic procedure and has not consented to it; and
(vi) if subsection (2) applies—of the matters in that subsection; and
(c) in the case of the person being a suspect, the constable is an authorised applicant.
(2) If the person is a child or an incapable person, the matters are:
(a) that either:
(i) the consent of a parent or guardian of the person cannot reasonably be obtained or has been withdrawn; or
(ii) a parent or guardian of the person is a suspect in relation to a crime or an offence to which the investigation or proceeding relates; and
(b) that, having regard to the best interests of the person, it is appropriate to make the authorisation.
(3) In this section: authorised applicant has the same meaning as in subsection 23WA(1) of the Crimes Act 1914. suspect has the same meaning as in subsection 23WA(1) of the Crimes Act 1914.
76B Providing forensic evidence to the ICC
(1) The Attorney-General may direct a constable about how forensic evidence is to be provided to the ICC if:
(a) the Attorney-General gave an authorisation to the constable under subsection 76A(1); and
(b) the forensic evidence resulted from the authorisation.
(2) A direction under subsection (1) is not a legislative instrument.
Division 11—Search and seizure
77 Attorney-General may authorise applications for search warrants
(1) This section applies if:
(a) the ICC makes a request to the Attorney-General compliance with which may involve the issue of a search warrant in relation to evidential material; and
(b) the Attorney-General is satisfied that:
(i) the request relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC; and
(ii) there are reasonable grounds to believe that the material is in Australia.
(2) The Attorney-General is to execute the request by authorising, in writing, a police officer to apply to a magistrate of the State or Territory in which that material is believed to be located for a search warrant.
78 Applications for search warrants
(1) If:
(a) a police officer is authorised under section 77 to apply for a search warrant; and
(b) the police officer has reasonable grounds for suspecting that the evidential material is, or within the applicable period referred to in subsection (3) of this section will be, at any premises;
the police officer may, by an information on oath setting out the grounds for that suspicion, apply for a search warrant in relation to the premises to search for that material.
(2) If:
(a) a police officer is authorised under section 77 to apply for a search warrant; and
(b) the police officer has reasonable grounds for suspecting that the evidential material is, or within the applicable period referred to in subsection (3) of this section will be, in a person’s possession;
the police officer may, by an information on oath setting out the grounds for that suspicion, apply for a search warrant in relation to that person to search for that material.
(3) For the purposes of this section, the applicable period is:
(a) if the application for the warrant is made by telephone, telex, fax or other electronic means, as provided by section 116—48 hours; or
(b) otherwise—72 hours.
Division 11A—Stored communications
78A Authorising application for a stored communications warrant
The Attorney-General may authorise, in writing, the Australian Federal Police, or the police force or police service of a State, to apply for a stored communications warrant under section 110 of the Telecommunications (Interception and Access) Act 1979 if:
(a) the Attorney-General is satisfied that:
(i) an investigation is being conducted by the Prosecutor or a proceeding is before the ICC; and
(ii) there are reasonable grounds to believe that stored communications relevant to the investigation or proceeding are held by a carrier; and
(b) the ICC has requested the Attorney-General to arrange for access to the stored communications.
Division 11B—Prospective telecommunications data
78B Authorising an authorisation for the disclosure of prospective telecommunications data
(1) The Attorney-General may authorise, in writing, the making of an authorisation under section 180B of the Telecommunications (Interception and Access) Act 1979 for the disclosure of information or documents if:
(a) the ICC has requested the Attorney-General to arrange for the disclosure of the information or documents; and
(b) the information or documents come into existence during a period specified by the ICC, and which started on or after the day the request was made; and
(c) the Attorney-General is satisfied that:
(i) an investigation is being conducted by the Prosecutor or a proceeding is before the ICC; and
(ii) the information or documents relate to the fact of a communication passing over a telecommunications system during that period.
(2) To avoid doubt, information or documents do not relate to the fact of a communication passing over a telecommunications system to the extent that the information is, or the documents contain, the contents or substance of a communication.
Division 12—Provision of records or documents
79 Facilitating the provision of records or documents
(1) This section applies if:
(a) the ICC requests assistance for the provision of records or documents, including official records or official documents; and
(b) the Attorney-General is satisfied that:
(i) the request relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC; and
(ii) the records or documents are or may be in Australia.
(2) The Attorney-General is to execute the request by authorising, in writing, the provision of the records or documents.
(3) If the Attorney-General authorises the provision of records or documents, an appropriate authority is to:
(a) locate and make available the records or documents; and
(b) make such report on his or her efforts as he or she considers to be appropriate in the circumstances; and
(c) send to the Attorney-General the report and any of the records or documents that are located.
(4) This section does not give to any person power to require the production of a record or document.
Division 12A—Requests for surveillance devices
79A Authorising applications for surveillance device warrants
(1) The Attorney-General may authorise, in writing, an eligible law enforcement officer to apply for a surveillance device warrant under section 14 of the Surveillance Devices Act 2004 if:
(a) the ICC has requested the Attorney-General to arrange for the use of a surveillance device; and
(b) the Attorney-General is satisfied that an investigation is being conducted by the Prosecutor, or a proceeding is before the ICC; and
(c) the Attorney-General is satisfied that the ICC has given appropriate undertakings for:
(i) ensuring that the information obtained as a result of the use of the device will only be used for the purpose for which it is communicated to the ICC; and
(ii) the destruction of a document or other thing containing information obtained as a result of the use of the device; and
(iii) any other matter the Attorney-General considers appropriate.
(2) An eligible law enforcement officer is a person mentioned in column 3 of table item 5 in subsection 6A(6), or column 3 of table item 5 in subsection 6A(7), of the Surveillance Devices Act 2004.
Division 12B—Requests for access to data held in computers
79B Authorising applications for computer access warrants
(1) The Attorney-General may authorise, in writing, an eligible law enforcement officer to apply for a computer access warrant under section 27A of the Surveillance Devices Act 2004 if:
(a) the ICC has requested the Attorney-General to arrange for the access to data held in a computer (the target computer); and
(b) the Attorney-General is satisfied that an investigation is being conducted by the Prosecutor, or a proceeding is before the ICC; and
(c) the Attorney-General is satisfied that the ICC has given appropriate undertakings for:
(i) ensuring that data obtained as a result of access under the warrant will only be used for the purpose for which it is communicated to the ICC; and
(ii) the destruction of a document or other thing containing data obtained as a result of access under the warrant; and
(iii) any other matter the Attorney-General considers appropriate.
(2) The target computer may be any one or more of the following:
(a) a particular computer;
(b) a computer on particular premises;
(c) a computer associated with, used by or likely to be used by, a person (whose identity may or may not be known).
(3) In this section:
computer has the same meaning as in the Surveillance Devices Act 2004.
data has the same meaning as in the Surveillance Devices Act 2004.
data held in a computer has the same meaning as in the Surveillance Devices Act 2004. eligible law enforcement officer means a person mentioned in column 3 of table item 5 in subsection 6A(6), or column 3 of table item 5 in subsection 6A(7), of the Surveillance Devices Act 2004.
Division 13—Protecting victims and witnesses and preserving evidence
80 Protecting victims and witnesses and preserving evidence
(1) This section applies if:
(a) the ICC requests assistance in protecting victims or witnesses or preserving evidence; and
(b) the Attorney-General is satisfied that:
(i) the request relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC; and
(ii) the assistance sought is not prohibited by Australian law.
(2) The Attorney-General is to execute the request by authorising, in writing, the provision of the assistance.
(3) If the Attorney-General authorises the provision of the assistance, an appropriate authority is to:
(a) give effect to the request; and
(b) prepare such report on his or her efforts as he or she considers to be appropriate in the circumstances; and
(c) send the report to the Attorney-General.
Part 4—Other requests by ICC
Division 14—Identification, tracing, and freezing or seizure, of proceeds of crimes within the jurisdiction of the ICC
Subdivision D—Notices to financial institutions
88 Giving notices to financial institutions
(1) A senior police officer may give a written notice to a financial institution requiring the institution to provide to an authorised officer any information or documents relevant to any one or more of the following:
(a) determining whether an account is held by a specified person with the financial institution;
(b) determining whether a particular person is a signatory to an account;
(c) if a person holds an account with the institution, the current balance of the account;
(d) details of transactions on such an account over a specified period of up to 6 months;
(e) details of any related accounts (including names of those who hold those accounts);
(f) a transaction conducted by the financial institution on behalf of a specified person.
(2) The senior police officer must not issue the notice unless he or she reasonably believes that giving the notice is required:
(a) to determine whether to take any action under this Division,
or under the Proceeds of Crime Act in connection with the operation of this Division; or
(b) in relation to proceedings under this Division, or under the Proceeds of Crime Act in connection with the operation of this Division.
(3) A senior police officer is a person covered by paragraph 213(3)(a), (b) or (c) of the Proceeds of Crime Act.
Part II—Assistance in relation to taking of evidence and production of documents or other articles
Division 2—Requests by foreign countries
13 Requests by foreign countries for the taking of evidence or the production of documents
(1) This section applies if a foreign country (the requesting country) requests:
(a) any of the following:
(i) that evidence be taken in Australia;
(ii) that evidence be taken in Australia and a tape recording be made of the evidence taken;
(iii) that evidence be taken in Australia for live transmission by means of video link to a courtroom or other place in the requesting country; or
(b) that documents or other articles in Australia be produced;
for the purposes of a proceeding in relation to a criminal matter in that country or another foreign country (the foreign proceeding).
(1A) The Attorney General may, by writing in accordance with the approved form, authorise:
(a) the taking of the evidence and its transmission to the requesting country; or
(b) the production of the documents or other articles and their transmission to the requesting country.
(2) If the Attorney General gives an authorisation under subsection (1A):
(a) in the case of the taking of evidence—a Magistrate or eligible Federal Circuit Court Judge may do all or any of the following:
(i) take evidence on oath or affirmation of the witness appearing before the Magistrate or Judge to give evidence in relation to the matter;
(ii) direct that all or part of the proceeding be conducted in private;
(iii) require a person to leave the place in Australia where the giving of evidence is taking place or going to take place;
(iv) prohibit or restrict the publication of evidence given in the proceeding or of the name of a party to, or a witness in, the foreign proceeding;
(v) subject to subsection 13AB(1), require the production of documents or other articles;
(vi) take such action as the Magistrate or Judge considers appropriate to facilitate the foreign proceeding;
(vii) perform any other function required by the regulations; or
(b) in the case of the production of documents or other articles—a Magistrate or eligible Federal Circuit Court Judge may, subject to subsection 13AB(1), require the production of the documents or other articles and, where the documents or other articles are produced, a Magistrate or eligible Federal Circuit Court Judge must send the documents, or copies of the documents certified by that Magistrate or Judge to be true copies, or the other articles, to the Attorney General.
Note 1: Subparagraph (2)(a)(i)—see also subsection (2C).
Note 2: Subparagraphs (2)(a)(ii), (iii) and (iv)—see also subsection (2B).
(2A) However, a Magistrate or eligible Federal Circuit Court Judge may not make a ruling about the admissibility of evidence in a foreign proceeding.
(2B) If a Magistrate or eligible Federal Circuit Court Judge is taking evidence for live transmission by means of video link to a courtroom or other place in the requesting country, the Magistrate or Judge:
(a) may only exercise the powers mentioned in subparagraphs (2)(a)(ii), (iii) and (iv) at the request of the foreign court; and
(b) may, at the request of the foreign court, assist with the administering by the foreign court of an oath or affirmation; and
(c) may administer an oath or affirmation.
(2C) If a Magistrate or eligible Federal Circuit Court Judge takes evidence as mentioned in subparagraph (2)(a)(i) but not for live transmission by means of video link to a courtroom, or other place, in the requesting country, the Magistrate or Judge must:
(a) if the requesting country requests that a tape recording be made of the evidence taken—cause a tape recording to be made of the evidence, certify that the evidence on the tape recording was taken by the Magistrate or Judge and cause the tape recording, or a copy of it, to be sent to the Attorney General; and
(b) in any other case—cause the evidence to be put in writing, certify that the evidence was taken by the Magistrate or Judge and cause the writing so certified to be sent to the Attorney General.
(2D) If, in taking evidence as mentioned in paragraph (2)(a), a Magistrate or eligible Federal Circuit Court Judge requires the production of documents or other articles under subparagraph (2)(a)(v), a Magistrate or eligible Federal Circuit Court Judge must send the documents, or copies of the documents certified by that Magistrate or Judge to be true copies, or the other articles, to the Attorney General.
(3) The evidence of such a witness may be taken in the presence or absence of the person to whom the proceeding in the requesting country relates or of his or her legal representative (if any).
(4) The Magistrate or eligible Federal Circuit Court Judge conducting a proceeding under subsection (2) may permit:
(a) the person to whom the proceeding in the requesting country relates;
(b) any other person giving evidence or producing documents or other articles at the proceeding before the Magistrate or Judge; and
(c) the relevant authority of the requesting country;
to have legal representation at the proceeding before the Magistrate or Judge.
(4A) If the requesting country has so requested, the Magistrate or eligible Federal Circuit Court Judge conducting a proceeding under subsection (2) may permit:
(a) any person to whom the proceeding in the requesting country relates or that person’s legal representative; or
(b) the legal representative of the relevant authority of the requesting country;
to examine or cross examine in person, or through a video link from the requesting country, any person giving evidence or producing a document or other article, at the proceeding.
(4B) For the purposes of Part III of the Crimes Act 1914:
(a) the proceeding before the Magistrate or eligible Federal Circuit Court Judge is a judicial proceeding; and
(b) evidence taken from a witness on oath or affirmation is testimony given in a judicial proceeding.
(5) The certificate by the Magistrate or eligible Federal Circuit Court Judge under subsection (2) shall state whether, when the evidence was taken or the documents or other articles were produced, any of the following persons were present:
(a) the person to whom the proceeding in the requesting country relates or his or her legal representative (if any);
(b) any other person giving evidence or producing documents or other articles or his or her legal representative (if any).
Part II—Assistance in relation to taking of evidence and production of documents or other articles
Division 2—Requests by foreign countries
13AA Enforcement of orders
(1) If a Magistrate or eligible Federal Circuit Court Judge is conducting a proceeding under subsection 13(2) and makes an order relating to the conduct of the proceeding, the order must be complied with.
(2) In the case of an eligible Federal Circuit Court Judge, subject to the Rules of Court made under the Federal Circuit Court of Australia Act 1999, the order may be enforced as if the order were an order of the Federal Circuit Court of Australia.
(3) In any other case, subject to the rules of the court of which the Magistrate is a member, the order may be enforced as if the order were an order of that court.
Part II—Assistance in relation to taking of evidence and production of documents or other articles
Division 2—Requests by foreign countries
13A Requests by foreign countries for provision of material lawfully obtained
(1) If:
(a) a foreign country (the requesting country) has commenced an investigation into, or proceedings in relation to, a serious offence against the laws of that country; and
(b) that foreign country requests the provision of material relevant to that investigation or those proceedings; and
(c) the Attorney General is satisfied that the material requested is:
(i) material lawfully obtained by an enforcement agency in Australia; and
(ii) material lawfully in the possession of that enforcement agency;
the Attorney General may, by writing in accordance with the approved form, authorise the provision of that material to the requesting country.
(2) The Attorney General may only authorise the provision to the requesting country of material specified in column 1 of the following table if the request relates to a serious offence against the laws of that country specified in column 2 of the table:
Offences for which provision of particular material may be authorised
Item Column 1 Column 2
1 material that is or includes protected information a serious offence punishable by a maximum penalty of imprisonment for 3 years or more, imprisonment for life or the death penalty
2 material that is or includes lawfully accessed information or stored communications warrant information a serious offence punishable by a maximum penalty of:
(a) imprisonment for 3 years or more, imprisonment for life or the death penalty; or
(b) a fine of an amount that is at least equivalent to 900 penalty units
3 material that is or includes lawfully intercepted information or interception warrant information (a) a serious offence punishable by a maximum penalty of imprisonment for 7 years or more, imprisonment for life or the death penalty; or
(b) a cartel offence punishable by a maximum penalty of a fine of an amount that is at least equivalent to $10,000,000
Part III—Assistance in relation to search and seizure
15 Requests by foreign countries for search and seizure—action by Attorney General
Where:
(a) a proceeding or investigation relating to a criminal matter involving a serious offence has commenced in a foreign country;
(b) there are reasonable grounds to believe that evidential material relating to the investigation or proceeding is located in Australia; and
(c) the foreign country requests the Attorney General to arrange for the evidential material to be obtained;
the Attorney General may, in his or her discretion, authorise a police officer, in writing, to apply to a Magistrate or eligible Federal Circuit Court Judge for one or more search warrants in respect of the evidential material.
Note: Divisions 2 and 3 of Part VIIA make provision relating to applications for, and the issue and execution of, search warrants requested by foreign countries.
Part IIIA—Assistance in relation to stored communications
15B Requests by foreign countries for stored communications
The Attorney General may, in his or her discretion, authorise the Australian Federal Police or a police force or police service of a State, in writing, to apply for a stored communications warrant under section 110 of the Telecommunications (Interception and Access) Act 1979 if the Attorney General is satisfied that:
(a) an investigation, or investigative proceeding, relating to a criminal matter involving an offence against the law of a foreign country (the requesting country) has commenced in the requesting country; and
(b) the offence to which the investigation, or investigative proceeding, relates is punishable by a maximum penalty of:
(i) imprisonment for 3 years or more, imprisonment for life or the death penalty; or
(ii) a fine of an amount that is at least equivalent to 900 penalty units; and
(c) there are reasonable grounds to believe that stored communications relevant to the investigation, or investigative proceeding, are held by a carrier; and
(d) the requesting country has requested the Attorney General to arrange for access to the stored communications.
Note: Information obtained under the warrant may only be communicated to the requesting country on certain conditions: see subsection 142A(1) of the Telecommunications (Interception and Access) Act 1979.
Part IV—Arrangements for persons to give evidence or assist investigations
Division 1—Requests by Australia
23 Release of certain persons upon request by foreign country
Where:
(a) a person is being held in custody in accordance with a direction of the Attorney General under section 18; and
(b) the foreign country from which the person has been brought requests the release of the person from custody;
the Attorney General shall direct that the person be released from custody.
Part IV—Arrangements for persons to give evidence or assist investigations
Division 2—Requests by foreign countries
26 Requests for giving of evidence at hearings in foreign countries
(1) Where:
(a) a proceeding relating to a criminal matter has commenced in a foreign country;
(b) the foreign country requests the attendance at a hearing in connection with the proceeding of a federal prisoner or a State prisoner who is in Australia (whether or not in custody);
(c) there are reasonable grounds to believe that the prisoner is capable of giving evidence relevant to the proceeding; and
(d) the Attorney General is satisfied that:
(i) the prisoner has consented to giving evidence in the foreign country; and
(ii) the foreign country has given adequate (whether or not unqualified) undertakings in respect of the matters referred to in subsection (3);
the Attorney General may, in his or her discretion:
(e) in a case where the prisoner is being held in custody:
(i) if the prisoner is a federal prisoner and is not also a State prisoner—direct that the prisoner be released from prison for the purpose of travelling to the foreign country to give evidence at the proceeding;
(ii) if the prisoner is a federal prisoner and also a State prisoner—direct, subject to the obtaining of any approvals required to be obtained from an authority of the relevant State, that the prisoner be released from prison for the purpose of travelling to the foreign country to give evidence at the proceeding; and
(iii) in any case, subject to the making or giving of any necessary directions or approvals in relation to the release of the prisoner—make arrangements for the travel of the prisoner to the foreign country in the custody of a police or prison officer appointed by the Attorney General for the purpose; or
(f) in a case where the prisoner, having been released from custody on a parole or other order or licence to be at large, is not being held in custody:
(i) if the prisoner is a federal prisoner and is not also a State prisoner—approve the travel of the prisoner to the foreign country to give evidence at the proceeding and obtain such approvals, authorities, permissions or variations to the parole or other order or licence to be at large as may be required;
(ii) if the prisoner is a federal prisoner and also a State prisoner—subject to the obtaining of any approvals, authorities or permissions required to be obtained from an authority of the relevant State and the making of any necessary variations to the parole or other order or licence to be at large, approve the travel of the prisoner to the foreign country to give evidence at the proceeding and obtain such approvals, authorities, permissions or variations to the parole or other order or licence to be at large made or granted, as the case may be, under a law of the Commonwealth or of a Territory as may be required; and
(iii) in any case, subject to the obtaining of any necessary approvals, authorities, permissions or variations of the parole or other order or licence to be at large—make arrangements for the travel of the prisoner to the foreign country.
(2) Where:
(a) a proceeding relating to a criminal matter has commenced in a foreign country;
(b) the foreign country requests the attendance at a hearing in connection with the proceeding of a person (not being a federal prisoner or a State prisoner) who is in Australia;
(c) there are reasonable grounds to believe that the person is capable of giving evidence relevant to the proceeding; and
(d) the Attorney General is satisfied that:
(i) the person has consented to giving evidence in the foreign country; and
(ii) the foreign country has given adequate (whether or not unqualified) undertakings in respect of the matters referred to in subsection (3);
the Attorney General may, in his or her discretion, make arrangements for the travel of the person to the foreign country.
(3) The matters in relation to which undertakings are to be given by a foreign country for the purpose of a request that a person give evidence in the foreign country are:
(a) that the person shall not:
(i) be detained, prosecuted or punished for any offence against the law of the foreign country that is alleged to have been committed, or that was committed, before the person’s departure from Australia;
(ii) be subjected to any civil suit in respect of any act or omission of the person that is alleged to have occurred, or that occurred, before the person’s departure from Australia, being a civil suit to which the person could not be subjected if the person were not in the foreign country; or
(iii) be required to give evidence in any proceeding in the foreign country other than the proceeding to which the request relates;
unless:
(iv) the person has left the foreign country; or
(v) the person has had the opportunity of leaving the foreign country and has remained in that country otherwise than for the purpose of giving evidence in the proceeding to which the request relates;
(b) that any evidence given by the person in the proceeding to which the request relates will be inadmissible or otherwise disqualified from use in the prosecution of the person for an offence against a law of the foreign country other than the offence of perjury in relation to the giving of that evidence;
(c) that the person will be returned to Australia in accordance with arrangements agreed by the Attorney General;
(d) in a case where the person is being held in custody in Australia and the Attorney General requests the foreign country to make arrangements for the keeping of the person in custody while the person is in the foreign country:
(i) the making of appropriate arrangements for that purpose;
(ii) that the person will not be released from custody in the foreign country unless the Attorney General notifies an appropriate authority of the foreign country that the person is entitled to be released from custody under Australian law; and
(iii) if the person is released in the foreign country as mentioned in subparagraph (ii)—that the person’s accommodation and expenses pending the completion of the proceeding to which the request relates will be paid for by the foreign country; and
(e) such other matters (if any) as the Attorney General thinks appropriate.
Part IV—Arrangements for persons to give evidence or assist investigations
Division 2—Requests by foreign countries
27 Requests for assistance in relation to investigations in foreign countries
(1) Where:
(a) an investigation relating to a criminal matter has commenced in a foreign country;
(b) the foreign country requests the removal of a federal prisoner or a State prisoner who is in Australia (whether or not in custody) to the foreign country for the purpose of giving assistance in relation to the investigation;
(c) there are reasonable grounds to believe that the prisoner is capable of giving assistance in relation to the investigation; and
(d) the Attorney General is satisfied that:
(i) the prisoner has consented to being removed to the foreign country for the purpose of giving assistance in relation to the investigation; and
(ii) the foreign country has given adequate (whether or not unqualified) undertakings in respect of the matters referred to in subsection (3);
the Attorney General may, in his or her discretion:
(e) in a case where the prisoner is being held in custody:
(i) if the prisoner is a federal prisoner and is not also a State prisoner—direct that the prisoner be released from prison for the purpose of travelling to the foreign country to give assistance in relation to the investigation;
(ii) if the prisoner is a federal prisoner and also a State prisoner—direct, subject to the obtaining of any approvals required to be obtained from an authority of the relevant State, that the prisoner be released from prison for the purpose of travelling to the foreign country for the purpose of giving assistance in relation to the investigation; and
(iii) in any case, subject to the making or giving of any necessary directions or approvals in relation to the release of the prisoner—make arrangements for the travel of the prisoner to the foreign country in the custody of a police or prison officer appointed by the Attorney General for the purpose; or
(f) in a case where the prisoner, having been released from custody on a parole or other order or licence to be at large, is not being held in custody:
(i) if the prisoner is a federal prisoner and is not also a State prisoner—approve the travel of the prisoner to the foreign country for the purpose of giving assistance in relation to the investigation and obtain such approvals, authorities, permissions or variations to the parole or other order or licence to be at large as may be required;
(ii) if the prisoner is a federal prisoner and also a State prisoner—subject to the obtaining of any approvals, authorities or permissions required to be obtained from an authority of the relevant State and the making of any necessary variations to the parole or other order or licence to be at large, approve the travel of the prisoner to the foreign country for the purpose of giving assistance in relation to the investigation and obtain such approvals, authorities, permissions or variations to the parole or other order or licence to be at large made or granted, as the case may be, under a law of the Commonwealth or of a Territory as may be required; and
(iii) in any case, subject to the obtaining of any necessary approvals, authorities, permissions or variations of the parole or other order or licence to be at large—make arrangements for the travel of the prisoner to the foreign country.
(2) Where:
(a) an investigation relating to a criminal matter has commenced in a foreign country;
(b) the foreign country requests that a person (not being a federal prisoner or a State prisoner) who is in Australia travel to the foreign country to give assistance in relation to the investigation;
(c) there are reasonable grounds to believe that the person is capable of giving assistance in relation to the investigation; and
(d) the Attorney General is satisfied that:
(i) the person has consented to travel to the foreign country for the purpose of giving assistance in relation to the investigation; and
(ii) the foreign country has given adequate (whether or not unqualified) undertakings in respect of the matters referred to in subsection (3);
the Attorney General may, in his or her discretion, make arrangements for the travel of the person to the foreign country.
(3) The matters in relation to which undertakings are to be given by a foreign country for the purpose of a request that a person be removed to, or travel to, the foreign country for the purpose of giving assistance in relation to an investigation are:
(a) that the person shall not:
(i) be detained, prosecuted or punished for any offence against the law of the foreign country that is alleged to have been committed, or that was committed, before the person’s departure from Australia;
(ii) be subjected to any civil suit in respect of any act or omission of the person that is alleged to have occurred, or that occurred, before the person’s departure from Australia, being a civil suit to which the person could not be subjected if the person were not in the foreign country; or
(iii) be required to give evidence in any proceeding in the foreign country;
unless:
(iv) the person has left the foreign country; or
(v) the person has had the opportunity of leaving the foreign country and has remained in that country otherwise than for the purpose of giving assistance in relation to the investigation to which the request relates;
(b) that the person will be returned to Australia in accordance with arrangements agreed by the Attorney General;
(c) in a case where the person is being held in custody in Australia and the Attorney General requests the foreign country to make arrangements for the keeping of the person in custody while the person is in the foreign country:
(i) the making of appropriate arrangements for that purpose;
(ii) that the person will not be released from custody in the foreign country unless the Attorney General notifies an appropriate authority of the foreign country that the person is entitled to be released from custody under Australian law; and
(iii) if the person is released in the foreign country as mentioned in subparagraph (ii)—that the person’s accommodation and expenses pending the completion of the investigation to which the request relates will be paid for by the foreign country; and
(d) such other matters (if any) as the Attorney General thinks appropriate.
Part IVA—Forensic procedures
Division 1—Requests by Australia
28A Requests by Australia for forensic procedures
(1) If:
(a) a proceeding relating to a criminal matter has commenced in Australia; and
(b) there are reasonable grounds to believe carrying out a forensic procedure on a person in a foreign country may result in evidence relevant to the proceeding;
Australia may request the foreign country to authorise the carrying out of a forensic procedure on the person for the purpose of giving assistance in connection with the proceeding.
(2) If:
(a) an investigation relating to a criminal matter has commenced in Australia; and
(b) carrying out a forensic procedure on a person in a foreign country may result in evidence relevant to the investigation;
Australia may request the foreign country to authorise the carrying out of a forensic procedure on the person for the purpose of giving assistance in relation to the investigation.
(3) To avoid doubt, Australia may request that a forensic procedure be carried out in the foreign country even if, under Australian law, the forensic procedure could not have been carried out by using processes similar to those used in the foreign country.
(4) Subsection (5) applies if:
(a) Australia makes a request under this section; and
(b) the foreign country obtains any thing relevant to the proceeding or investigation by means of a process authorised by the law of that country other than the carrying out (as requested by Australia) of a forensic procedure on a particular person.
(5) The thing obtained by the foreign country:
(a) is not inadmissible in evidence in the proceeding; or
(b) is not precluded from being used for the purposes of the investigation;
on the ground alone that it was obtained otherwise than in accordance with the request.
Part IVA—Forensic procedures
Division 2—Requests by foreign countries
28B Requests by foreign countries for forensic procedures
(1) If a foreign country requests that a forensic procedure be carried out on a person, the Attorney General may authorise a constable to apply, in accordance with Part ID of the Crimes Act 1914, to a magistrate for an order for the carrying out of the forensic procedure on the person, so long as, if the person is a suspect within the meaning of subsection 23WA(1) of that Act, the constable is an authorised applicant within the meaning of that subsection.
(2) The Attorney General must not authorise a constable under subsection (1) unless the Attorney General is satisfied of the following matters:
(a) a request has been made by a foreign country that a forensic procedure be carried out on a person;
(b) unless the person is a child or an incapable person—the foreign country has:
(i) started investigating whether the person has committed a foreign serious offence against its laws; or
(ii) started proceedings against the person for a foreign serious offence;
(c) the person is, or is believed to be, in Australia;
(d) the foreign country has given:
(i) appropriate undertakings in relation to the retention, use and destruction of forensic material, or of information obtained from analysis of that forensic material; and
(ii) any other undertakings that the Attorney General considers necessary;
(e) unless the person is a child or an incapable person—the person has been given an opportunity to consent to the forensic procedure and has not consented to it;
(f) if the person is a child or an incapable person, the matters specified in subsection (3).
(3) If the person is a child or an incapable person, the Attorney General must:
(a) be satisfied that either of the following applies:
(i) the consent of the parent or guardian cannot reasonably be obtained or has been withdrawn;
(ii) the parent or guardian is a suspect in relation to the foreign serious offence; and
(b) believe that, having regard to the best interests of the child or incapable person, it is appropriate to make the authorisation.
Part VI—Proceeds of crime
Division 1—Requests by Australia
32 Requests for enforcement of orders
Australia may request an appropriate authority of a foreign country to make arrangements for the enforcement of:
(a) an Australian forfeiture order against property that is believed to be located in that country;
(b) an Australian pecuniary penalty order, or an Australian literary proceeds order, where some or all of the property available to satisfy the order is believed to be located in that country; or
(c) an Australian restraining order against property that is believed to be located in that country;
if the order was made in respect of a serious offence.
33 Requests for issue of orders in foreign countries
Where a criminal proceeding or criminal investigation has commenced in Australia in relation to a serious offence, Australia may request an appropriate authority of a foreign country to obtain the issue, in respect of the offence, of a warrant, order or other instrument similar in nature to any of the following warrants and orders under the Proceeds of Crime Act:
(b) a restraining order;
(c) a production order;
(d) a search warrant;
(e) a monitoring order.
Part VI—Proceeds of crime
Division 2—Requests by foreign countries
Subdivision A—Enforcement of foreign orders
34E Enforcement of foreign restraining orders
(1) A foreign restraining order registered in a court under this Subdivision has effect, and may be enforced, as if it were a restraining order that:
(a) was made by the court under the Proceeds of Crime Act at the time of the registration; and
(b) directed that the property specified in the order is not to be disposed of or otherwise dealt with by any person.
(2) In particular:
(a) section 288 of that Act applies as if:
(i) the reference in that section to the Official Trustee’s exercise of powers under that Act included a reference to the Official Trustee’s exercise of those powers in relation to a foreign restraining order so registered; and
(ii) the reference in that section to the Official Trustee’s performance of functions or duties under that Act included a reference to the Official Trustee’s performance of those functions or duties in relation to such a foreign restraining order; and
(b) section 289 of that Act applies as if the reference in that section to controlled property included a reference to property that is subject to an order under section 35; and
(c) section 290 of that Act applies as if the reference in that section to the controlled property were a reference to the property that is subject to an order under section 35.
(3) Divisions 1, 2 and 3 of Part 2 1, section 33, Divisions 5 and 6 of Part 2 1 and sections 142, 143, 169, 170 and 282 to 287 of the Proceeds of Crime Act do not apply in relation to a foreign restraining order registered under this Subdivision.
Note: Division 3 of this Part contains further provisions relating to registered foreign restraining orders.
Part VIIA—Search, seizure and powers of arrest
Division 1—General
38A Object of Part
This Part makes provision:
(a) for the issue and execution in Australia, at the request of a foreign country, of a search warrant in respect of evidential material in Australia relating to an investigation or proceeding in the foreign country that relates to a criminal matter involving a serious offence; and
(b) for matters relating to the arrest of a person when the arrest has been authorised by this Act or by a warrant issued under the regulations.
Part 1-2 — Interpretation
5B Exempt proceedings
(1) A reference in this Act to an exempt proceeding is a reference to:
(a) a proceeding by way of a prosecution for a prescribed offence; or
(b) a proceeding for the confiscation or forfeiture of property, or for the imposition of a pecuniary penalty, in connection with the commission of a prescribed offence; or
(ba) a proceeding under the Spam Act 2003; or
(bb) a proceeding under, or a proceeding relating to a matter arising under, Division 104 of the Criminal Code; or
(bc) a proceeding under, or a proceeding relating to a matter arising under, Division 105 of the Criminal Code, so far as the proceeding relates to a preventative detention order; or
(c) a proceeding for the taking of evidence pursuant to section 43 of the Extradition Act 1988, in so far as the proceeding relates to a prescribed offence; or
(ca) a proceeding under, or a proceeding relating to a matter
arising under, an organised crime control law; or
(d) a proceeding for the extradition of a person from a State or Territory to another State or Territory, in so far as the proceeding relates to a prescribed offence; or
(da) a proceeding by way of a coroner’s inquest if, in the opinion of the coroner, the event that is the subject of the inquest may have resulted from the commission of a prescribed offence; or
(e) a police disciplinary proceeding; or
(ea) a proceeding in so far as it relates to:
(i) a decision by the Commissioner of Police to terminate the employment of an AFP employee or the appointment of a special member of the Australian Federal Police; or
(ii) a decision by the Commissioner of a Police Force of a State to terminate the appointment of an officer or member of staff of that Police Force; or
(f) any other proceeding (not being a proceeding by way of a prosecution for an offence) in so far as it relates to alleged misbehaviour, or alleged improper conduct, of an officer of the Commonwealth or of a State; or
(g) a proceeding for the recovery of an amount due to a carrier in connection with the supply of a telecommunications service;
(h) a proceeding under section 13 of the Mutual Assistance in Criminal Matters Act 1987 in relation to a criminal matter (within the meaning of that Act) that concerns an offence, against the laws of the foreign country that made the request resulting in the proceeding, that is punishable by imprisonment for life or for a period, or maximum period, of at least 3 years; or
(haa) a proceeding under Division 5 of Part 4 of the International Criminal Court Act 2002; or
(hab) a proceeding before the International Criminal Court sitting in Australia under Part 5 of the International Criminal Court Act 2002; or
(ha) a proceeding of an eligible Commonwealth authority; or (hb) a proceeding of the Independent Commission Against Corruption; or
(hc) a proceeding of the Inspector of the Independent Commission Against Corruption; or
(hd) a proceeding in relation to an application under subsection 34B(1) of the Australian Crime Commission Act 2002 in respect of contempt of the Australian Crime Commission; or
(i) a proceeding of the Director, Police Integrity; or
(ia) a proceeding of the Corruption and Crime Commission; or (ib) a proceeding of the Parliamentary Inspector of the Corruption and Crime Commission; or
(j) a proceeding under Division 1 of Part 4 of the International War Crimes Tribunals Act 1995; or
(k) a proceeding of the Police Integrity Commission; or (ka) a proceeding of the Inspector of the Police Integrity Commission; or
(kb) a proceeding of the Crime and Misconduct Commission; or
(l) a proceeding by way of a bail application if the application relates to a proceeding by way of a prosecution for a prescribed offence; or
(m) a proceeding by way of review of a decision to refuse such a bail application; or
(n) a proceeding by way of a review of a decision to grant such a bail application.
Note: Paragraphs (l), (m) and (n) were inserted as a response to the decision
of the Court of Appeal of New South Wales in Director of Public Prosecutions v Serratore (1995) 132 ALR 461.
(2) Without limiting subsection (1), a reference in Chapter 3 to an exempt proceeding includes a reference to:
(a) a proceeding by way of a prosecution for an offence punishable:
(i) by imprisonment for a period, or a maximum period, of at least 12 months; or
(ii) by a fine, or a maximum fine, of at least 60 penalty units if the offence is committed by an individual; or
(iii) if the offence cannot be committed by an individual— by a fine, or a maximum fine, of at least 300 penalty units; or
(b) a proceeding for the confiscation or forfeiture of property, or for the imposition of a pecuniary penalty, in connection with the commission of such an offence; or
(c) a proceeding for the taking of evidence pursuant to section 43 of the Extradition Act 1988, in so far as the proceeding relates to such an offence; or
(d) a proceeding for the extradition of a person from a State or Territory to another State or Territory, in so far as the proceeding relates to such an offence; or
(e) a proceeding by way of a coroner’s inquest if, in the opinion of the coroner, the event that is the subject of the inquest may have resulted from the commission of such an offence; or
(f) a proceeding for recovery of a pecuniary penalty for a contravention that would, if proved, render the person committing the contravention liable to:
(i) a pecuniary penalty, or a maximum pecuniary penalty, of at least 60 penalty units if the contravention is committed by an individual; or
(ii) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 300 penalty units.
Part 1-2—Interpretation
5B Exempt proceedings
(1) A reference in this Act to an exempt proceeding is a reference to:
a proceeding by way of a prosecution for a prescribed offence; or
a proceeding for the confiscation or forfeiture of property, or for the imposition of a pecuniary penalty, in connection with the commission of a prescribed offence; or
(ba) a proceeding under the Spam Act 2003; or
(bb) a proceeding under, or a proceeding relating to a matter arising under, Division 104 of the Criminal Code; or
(bc) a proceeding under, or a proceeding relating to a matter arising under, Division 105 of the Criminal Code, so far as the proceeding relates to a preventative detention order; or a proceeding for the taking of evidence pursuant to section 43 of the Extradition Act 1988, in so far as the proceeding relates to a prescribed offence; or
(ca) a proceeding under, or a proceeding relating to a matter arising under, an organised crime control law; or a proceeding for the extradition of a person from a State or Territory to another State or Territory, in so far as the proceeding relates to a prescribed offence; or
(da) a proceeding by way of a coroner’s inquest if, in the opinion of the coroner, the event that is the subject of the inquest may have resulted from the commission of a prescribed offence; or a police disciplinary proceeding; or
(ea) a proceeding in so far as it relates to: a decision by the Commissioner of Police to terminate the employment of an AFP employee or the appointment of a special member of the Australian Federal Police; or a decision by the Commissioner of a Police Force of a State to terminate the appointment of an officer or member of staff of that Police Force; or
(eb) a proceeding in so far as it is, or relates to, disciplinary or legal action (within the meaning of section 6S) that is in relation to an eligible staff member (within the meaning of that section) of the Australian Federal Police or the ACC; or any other proceeding (not being a proceeding by way of a prosecution for an offence) in so far as it relates to alleged misbehaviour, or alleged improper conduct, of an officer of the Commonwealth or of a State; or a proceeding for the recovery of an amount due to a carrier in connection with the supply of a telecommunications service; a proceeding under section 13 of the Mutual Assistance in Criminal Matters Act 1987 in relation to a criminal matter (within the meaning of that Act) that concerns an offence, against the laws of the foreign country that made the request resulting in the proceeding, that is punishable by imprisonment for life or for a period, or maximum period, of at least 3 years; or
(haa) a proceeding under Division 5 of Part 4 of the International Criminal Court Act 2002; or
(hab) a proceeding before the International Criminal Court sitting in Australia under Part 5 of the International Criminal Court Act 2002; or
(ha) a proceeding of an eligible Commonwealth authority; or (hb) a proceeding of the Independent Commission Against Corruption; or
(hc) a proceeding of the Inspector of the Independent Commission Against Corruption; or
(hd) a proceeding in relation to an application under subsection 34B(1) of the Australian Crime Commission Act 2002 in respect of contempt of the Australian Crime Commission; or
(f) a proceeding of the IBAC; or
(iaa) a proceeding of the Victorian Inspectorate; or
(ia) a proceeding of the Corruption and Crime Commission; or
(ib) a proceeding of the Parliamentary Inspector of the Corruption and Crime Commission; or
a proceeding under Division 1 of Part 4 of the International War Crimes Tribunals Act 1995; or
a proceeding of the Police Integrity Commission; or
(ka) a proceeding of the Inspector of the Police Integrity
Commission; or
(kb) a proceeding of the Crime and Misconduct Commission; or (kc) a proceeding of the Independent Commissioner Against Corruption; or a proceeding by way of a bail application if the application relates to a proceeding by way of a prosecution for a prescribed offence; or a proceeding by way of review of a decision to refuse such a bail application; or a proceeding by way of a review of a decision to grant such a bail application.
Part 1-2—Interpretation
5B Exempt proceedings
(1) A reference in this Act to an exempt proceeding is a reference to:
a proceeding by way of a prosecution for a prescribed offence; or
a proceeding for the confiscation or forfeiture of property, or for the imposition of a pecuniary penalty, in connection with the commission of a prescribed offence; or
(ba) a proceeding under the Spam Act 2003; or
(bb) a proceeding under, or a proceeding relating to a matter arising under, Division 104 of the Criminal Code; or
(bc) a proceeding under, or a proceeding relating to a matter arising under, Division 105 of the Criminal Code, so far as the proceeding relates to a preventative detention order; or a proceeding for the taking of evidence pursuant to section 43 of the Extradition Act 1988, in so far as the proceeding relates to a prescribed offence; or
(ca) a proceeding under, or a proceeding relating to a matter arising under, an organised crime control law; or a proceeding for the extradition of a person from a State or Territory to another State or Territory, in so far as the proceeding relates to a prescribed offence; or
(da) a proceeding by way of a coroner’s inquest if, in the opinion of the coroner, the event that is the subject of the inquest may have resulted from the commission of a prescribed offence; or a police disciplinary proceeding; or
(ea) a proceeding in so far as it relates to: a decision by the Commissioner of Police to terminate the employment of an AFP employee or the appointment of a special member of the Australian Federal Police; or a decision by the Commissioner of a Police Force of a State to terminate the appointment of an officer or member of staff of that Police Force; or
(eb) a proceeding in so far as it is, or relates to, disciplinary or legal action (within the meaning of section 6S) that is in relation to an eligible staff member (within the meaning of that section) of the Australian Federal Police or the ACC; or any other proceeding (not being a proceeding by way of a prosecution for an offence) in so far as it relates to alleged misbehaviour, or alleged improper conduct, of an officer of the Commonwealth or of a State; or a proceeding for the recovery of an amount due to a carrier in connection with the supply of a telecommunications service; a proceeding under section 13 of the Mutual Assistance in Criminal Matters Act 1987 in relation to a criminal matter (within the meaning of that Act) that concerns an offence, against the laws of the foreign country that made the request resulting in the proceeding, that is punishable by imprisonment for life or for a period, or maximum period, of at least 3 years; or
(haa) a proceeding under Division 5 of Part 4 of the International Criminal Court Act 2002; or
(hab) a proceeding before the International Criminal Court sitting in Australia under Part 5 of the International Criminal Court Act 2002; or
(ha) a proceeding of an eligible Commonwealth authority; or (hb) a proceeding of the Independent Commission Against Corruption; or
(hc) a proceeding of the Inspector of the Independent Commission Against Corruption; or
(hd) a proceeding in relation to an application under subsection 34B(1) of the Australian Crime Commission Act 2002 in respect of contempt of the Australian Crime Commission; or
(f) a proceeding of the IBAC; or
(iaa) a proceeding of the Victorian Inspectorate; or
(ia) a proceeding of the Corruption and Crime Commission; or
(ib) a proceeding of the Parliamentary Inspector of the Corruption and Crime Commission; or
a proceeding under Division 1 of Part 4 of the International War Crimes Tribunals Act 1995; or
a proceeding of the Police Integrity Commission; or
(ka) a proceeding of the Inspector of the Police Integrity
Commission; or
(kb) a proceeding of the Crime and Misconduct Commission; or (kc) a proceeding of the Independent Commissioner Against Corruption; or a proceeding by way of a bail application if the application relates to a proceeding by way of a prosecution for a prescribed offence; or a proceeding by way of review of a decision to refuse such a bail application; or a proceeding by way of a review of a decision to grant such a bail application.
(2) Without limiting subsection (1), a reference in Chapter 3 to an exempt proceeding includes a reference to:
(a) a proceeding by way of a prosecution for an offence punishable:
(i) by imprisonment for a period, or a maximum period, of at least 12 months; or
(ii) by a fine, or a maximum fine, of at least 60 penalty units if the offence is committed by an individual; or
(iii) if the offence cannot be committed by an individual— by a fine, or a maximum fine, of at least 300 penalty units; or
(b) a proceeding for the confiscation or forfeiture of property, or for the imposition of a pecuniary penalty, in connection with the commission of such an offence; or
(c) a proceeding for the taking of evidence pursuant to section 43 of the Extradition Act 1988, in so far as the proceeding relates to such an offence; or
(d) a proceeding for the extradition of a person from a State or Territory to another State or Territory, in so far as the proceeding relates to such an offence; or
(e) a proceeding by way of a coroner’s inquest if, in the opinion of the coroner, the event that is the subject of the inquest may have resulted from the commission of such an offence; or
(f) a proceeding for recovery of a pecuniary penalty for a contravention that would, if proved, render the person committing the contravention liable to:
(i) a pecuniary penalty, or a maximum pecuniary penalty, of at least 60 penalty units if the contravention is committed by an individual; or
(ii) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 300 penalty units
2 Commencement [see Note 1]
(1) This Act commences on a day to be fixed by Proclamation.
(2) If this Act does not commence under subsection (1) within the period of 6 months beginning on the day on which it receives the Royal Assent, it commences on the first day after the end of that period.
3 Interpretation
In this Act, unless the contrary intention appears:
AFP employee has the same meaning as in the Australian Federal Police Act 1979.
approved authority means:
(a) a Commissioner (however designated) of the police force of a State or Territory; or
(aa) the Integrity Commissioner (within the meaning of the Law Enforcement Integrity Commissioner Act 2006); or
(b) the Chief Executive Officer of the Australian Crime Commission; or
(c) an authority or body of the Commonwealth or of a State or 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 notice in the Gazette to be an approved authority for the purposes of this Act.
Commissioner means the Commissioner of the Australian Federal Police.
Commonwealth identity document means a passport, a tax file number within the meaning of section 202A of the Income Tax Assessment Act 1936 or another document prescribed for the purposes of this definition.
Commonwealth officer has the same meaning as in section 3 of the Crimes Act 1914.
Commonwealth participant means a person who is a participant:
(a) in relation to an offence against a law of the Commonwealth; or
(b) in relation to a Royal Commission under the Royal Commissions Act 1902 or another commission or inquiry under a law of the Commonwealth; or
(c) in relation to an inquiry instituted by a House of the Parliament; or
(d) under section 10 or 10A.
complementary witness protection law means a law of a State or Territory that:
(a) makes provision for the protection of witnesses; and
(b) is declared under section 3AA to be a complementary witness protection law.
current NWPP identity, in relation to a participant at a particular time, means an identity:
(a) provided to the participant under the NWPP; and
(b) being used by the participant at that time.
Deputy Commissioner means a Deputy Commissioner of the Australian Federal Police.
designated position means a position of a Deputy Commissioner, an AFP employee or a special member of the Australian Federal Police:
(a) the duties of which relate to the NWPP and:
(i) require the occupant to have a national security clearance because those duties involve access to national security information classified as “secret” or “top secret”; or
(ii) require the occupant to have a position of trust clearance at the level of “highly protected” because those duties involve access to sensitive information; and
(b) that has been declared in writing by the Commissioner to be a designated position for the purposes of this Act.
former NWPP identity, in relation to a participant at a particular time, means an identity that:
(a) was provided to the person under the NWPP before that time; and
(b) is not the participant’s current NWPP identity at that time.
former participant means a person who has ceased to be included in the NWPP.
Immigration Secretary means the Secretary of the Department administered by the Minister who administers the Migration Act 1958.
information, in relation to the identity of a person includes, but is not limited to, information about one or more of the following in relation to the person:
(a) appearance;
(b) voice quality or accent;
(c) mannerisms;
(d) address or location;
(e) particular skills and qualifications;
(f) personal history.
member means a member or special member of the Australian Federal Police.
national security clearance means a clearance that enables a person to have access to national security information or to an area that has been designated as secure.
national security information means information affecting the defence, security or international relations of Australia.
NWPP means the National Witness Protection Program established by this Act.
original identity, in relation to a participant, means the identity of the participant at the time immediately before he or she was first provided with an identity under the NWPP.
parent: without limiting who is a parent of anyone for the purposes of this Act, a person is the parent of another person if the other person is a child of the person within the meaning of the Family Law Act 1975.
participant means a person included in the NWPP and, unless the contrary intention appears, includes a former participant.
position of trust clearance means a clearance that enables a person to have access to sensitive material or to resources of a valuable or attractive nature.
Registrar means a person who occupies the position of Registrar of births, deaths and marriages, however described, of a State or Territory.
sensitive information includes material and resources (other than national security information) the unauthorised disclosure, loss, compromise, misuse or damage of which could reasonably be expected to:
(a) cause serious harm to a person, a government or the legitimate activities of an agency; or
(b) be seriously prejudicial to the establishment and maintenance of lawful methods for the protection of public safety.
State offence that has a federal aspect has the meaning given by section 3AB.
State participant means a participant:
(a) in relation to a State offence that has a federal aspect; or
(b) in relation to a State offence that does not have a federal aspect; or
(c) in relation to a commission or inquiry under a law of a State.
Territory participant means a participant:
(a) in relation to an offence against a law of a Territory; or
(b) in relation to a commission or inquiry under a law of a Territory.
witness means:
(a) a person who has given, or who has agreed to give, evidence on behalf of the Crown in right of the Commonwealth or of a State or Territory in:
(i) proceedings for an offence; or
(ii) hearings or proceedings before an authority that is declared by the Minister by notice in the Gazette to be an authority to which this paragraph applies; or
(b) a person who has given, or who has 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 the Commonwealth or of a State or Territory; or
(c) a person who has made a statement to the Australian Federal Police or an approved authority in relation to an offence against a law of the Commonwealth or of a State or Territory; or
(d) a person who, for any other reason, may require protection or other assistance under the NWPP; or
(e) a person who, because of his or her relationship to, or association with, a person referred to in paragraph (a), (b), (c) or (d) may require protection or other assistance under the NWPP.
3AA Declaration of complementary witness protection law
For the purposes of this Act, the Minister may, by legislative instrument, declare a law of a State or Territory to be a complementary witness protection law.
3AB State offence that has a federal aspect
An offence against a law of a State is taken, for the purposes of this Act, to be a State offence that has a federal aspect:
(a) in a case where the offence is being investigated by the Australian Federal Police—if it would be taken to be a State offence that has a federal aspect under section 4AA of the Australian Federal Police Act 1979; and
(b) in a case where the offence is being investigated by the Australian Crime Commission—if it would be taken to be a State offence that has a federal aspect under section 4A of the Australian Crime Commission Act 2002; and
(c) in any other case—if it would be taken to be a State offence that has a federal aspect if either of the sections referred to in paragraphs (a) and (b) were to apply.
3A Application of the Criminal Code
Chapter 2 of the Criminal Code applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code sets out the general principles of
criminal responsibility.
4 Establishment of the National Witness Protection Program
(1) The Commissioner is to maintain a program, to be known as the National Witness Protection Program, under which the Commissioner, and persons who hold or occupy designated positions, arrange or provide protection and other assistance for witnesses.
(2) That protection and assistance may include things done as a result of powers and functions conferred on the Commissioner under a complementary witness protection law.
5 Inclusion in NWPP not to be done as a reward for giving evidence etc.
The inclusion of a witness in the NWPP is not to be done as a reward or as a means of persuading or encouraging the witness to give evidence or to make a statement.
6 Arrangements with approved authorities
(1) The Commissioner 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, those arrangements:
(a) may provide for the Commissioner or a member to perform functions or exercise powers conferred by a complementary witness protection law; and
(b) must include procedures under which the authority shares with the Commonwealth the costs incurred in providing those services; and
(c) may provide for the authority to make available to the Commissioner such statements, transcripts of evidence and other documents as will assist the Commissioner in deciding:
(i) whether to include a witness in the NWPP; and
(ii) what protection and assistance is appropriate for a participant; and
(d) may confer powers and functions under complementary witness protection laws on the Commissioner.
(3) The functions of the Commissioner under this Act do not include the provision of services under such an arrangement in relation to a law of a State or Territory unless the provision of those services is authorised to the extent necessary by the State or Territory concerned.
7 Witness to disclose certain matters before being included in the NWPP
(1) The Commissioner is not to include a witness in the NWPP unless the Commissioner is satisfied that the witness has provided the Commissioner with all information necessary for the
Commissioner to decide whether the witness should be included.
(2) Without limiting the generality of subsection (1), a witness must:
(a) disclose to the Commissioner details of all outstanding legal obligations of the witness; and
(b) disclose to the Commissioner details of any outstanding debts of the witness, including amounts outstanding for any tax, including a tax under a law of a State or Territory; and
(c) disclose to the Commissioner details of the witness’s criminal history; and
(d) disclose to the Commissioner details of any civil proceedings that have been instituted by or against the witness; and
(e) disclose to the Commissioner details of any bankruptcy proceedings that have been instituted against the witness; and
(f) inform the Commissioner whether the witness is an undischarged bankrupt under the Bankruptcy Act 1966 and, if the witness is, give to the Commissioner copies of all
documents relating to the bankruptcy; and
(g) inform the Commissioner whether the witness has entered into or intends to enter into a personal insolvency agreement under Part X of the Bankruptcy Act 1966 and, if the witness has done or intends to do such a thing, give to the Commissioner copies of all documents relating to that thing; and
(h) inform the Commissioner whether there are any restrictions on the witness’s holding positions in companies, whether public or private and, if there are, give to the Commissioner copies of all documents relating to those restrictions; and
(i) disclose to the Commissioner details of the witness’s immigration status; and
(j) disclose to the Commissioner details of financial liabilities and assets (whether real or personal) of the witness in relation to which:
(i) a record is kept under a law of a State or Territory; or
(ii) the witness has entered into a contractual arrangement; and
(k) disclose to the Commissioner details of any cash held by the witness, whether in accounts or otherwise; and
(l) disclose to the Commissioner details of any reparation order that is in force against the witness; and
(m) inform the Commissioner whether any of the witness’s property (whether real or personal) is liable to forfeiture or confiscation or is subject to restraint under a law of the Commonwealth or of a State or Territory; and
(n) inform the Commissioner of the witness’s general medical condition; and
(o) disclose to the Commissioner details of any relevant court orders or arrangements relating to custody or access to children; and
(p) disclose to the Commissioner details of any business dealings in which the witness is involved; and
(q) disclose to the Commissioner details of court orders relating to sentences imposed on the witness to which the witness is subject in relation to criminal prosecutions; and
(r) disclose to the Commissioner details of any parole or licence to which the witness is subject; and
(s) give to the Commissioner copies of any documents relating to any such orders, parole or licence; and
(t) disclose to the Commissioner details of any arrangements that the witness has made for:
(i) the service of documents on the witness; or
(ii) representation in proceedings in a court; or
(iii) enforcement of judgments in the witness’s favour; or
(iv) compliance with the enforcement of judgments against the witness.
(3) The Commissioner may also:
(a) require the witness to undergo:
(i) medical tests or examinations; or
(ii) psychological or psychiatric examinations;
and to make the results available to the Commissioner; or
(b) make such other inquiries and investigations as the Commissioner considers necessary;
for the purposes of assessing whether the witness should be included in the NWPP.
8 Selection for inclusion in the NWPP
(1) The Commissioner has the sole responsibility of deciding whether to include a witness in the NWPP, including cases where an approved authority has requested that a witness be included in the NWPP.
(2) A witness may be included in the NWPP only if:
(a) the Commissioner 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 9 or:
(i) if the witness is under 18 years—a parent or guardian of the witness signs such a 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 such a memorandum.
(3) The Commissioner must, in deciding whether to include a witness in the NWPP, have regard to:
(a) 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 NWPP; and
(b) if a psychological or psychiatric examination or evaluation of the witness has been conducted to determine the witness’s suitability for inclusion in the NWPP—that examination or evaluation; and
(c) the seriousness of the offence to which any relevant evidence or statement relates; and
(d) the nature and importance of any relevant evidence or statement; and
(e) whether there are viable alternative methods of protecting the witness; and
(f) the nature of the perceived danger to the witness; and
(g) the nature of the witness’s relationship to other witnesses being assessed for inclusion in the NWPP;
and may have regard to such other matters as the Commissioner considers relevant.
(4) The Commissioner must not include a witness in the NWPP if the Commissioner does not, in his or her opinion, have enough information to assess the matters referred to in subsection (3) in relation to the witness.
(5) If:
(a) a parent or guardian of a witness signs a memorandum of understanding because the witness was under 18 years; and
(b) the witness is included in the NWPP and remains a participant until after he or she turns 18;
the Commissioner may require the participant to sign another memorandum of understanding.
(6) In this section:
participant does not include a former participant.
9 Memorandum of understanding
(1) A memorandum of understanding is to:
(a) set out the basis on which a participant is included in the NWPP and details of the protection and assistance that is to be provided; and
(b) contain a provision to the effect that protection and assistance under the NWPP may be terminated if the participant breaches a term of the memorandum of understanding.
(2) A memorandum of understanding in relation to a participant may also contain:
(a) the terms and conditions on which protection and assistance is to be provided to the participant, which may include a condition that protection and assistance may be withdrawn if the participant:
(i) commits an offence against a law of the Commonwealth or of a State or Territory; or
(ii) engages in activities of a kind specified in the memorandum of understanding; or
(iii) compromises the integrity of the NWPP; and
(b) an agreement by or on behalf of the participant not to compromise, directly or indirectly, the security of, or any other aspect of, the protection or assistance being provided; and
(c) an agreement by or on behalf of the participant that the participant comply with all reasonable directions of the Commissioner in relation to the protection and assistance provided to the participant; and
(d) an agreement by or on behalf of the participant that the participant will, if required to do so by the Commissioner:
(i) undergo medical, psychological or psychiatric tests or examinations and make the results available to the Commissioner; or
(ii) undergo drug or alcohol counselling or treatment; and
(e) a list of:
(i) the outstanding legal obligations (including family maintenance obligations and taxation obligations) of the participant; and
(ii) any other obligations of the participant;
and an agreement by or on behalf of the participant as to how those obligations are to be met; and
(f) a financial support arrangement; and
(g) an agreement by or on behalf of the participant that the participant will disclose to the Commissioner details of any criminal charges that are made against, and any civil or bankruptcy proceedings that are made in relation to, the participant after the participant is included in the NWPP.
(3) A memorandum of understanding must be signed by or on behalf of the witness in the presence of a person who holds or occupies a designated position.
(4) A witness becomes included in the NWPP when the Commissioner signs the memorandum of understanding.
(5) The Commissioner must, as soon as practicable after signing a memorandum of understanding, notify the relevant participant that it has been signed.
(6) Subject to subsection (7), the Commissioner may, by notice in writing given to a participant, vary the memorandum of understanding, and a variation takes effect on the day on which the notice is received by the participant.
(7) A variation must not have the effect of removing from the memorandum of understanding the provisions referred to in subsection (1).
(8) In this section: participant does not include a former participant.
(9) To avoid doubt, subsection (8) does not affect any obligation of a former participant under a memorandum of understanding if the obligation continues (whether expressly or impliedly) to have effect after the former participant ceased to be included in the NWPP.
10 Inclusion of foreign nationals or residents in NWPP at the request of foreign law enforcement agencies
(1) If:
(a) the Minister receives a request from an appropriate authority of a foreign country (the agency) for the inclusion of a person (the nominated person) who is a citizen or a resident of that country in the NWPP; and
(b) the Minister is satisfied that:
(i) the agency has provided all material that is necessary to support the request; and
(ii) it is appropriate to do so in all the circumstances; the Minister is to refer the request to the Commissioner.
(2) The Commissioner is to consider including the nominated person in the NWPP in the same way as the Commissioner would consider including another person in the NWPP.
(3) The Commissioner may, if he or she thinks it appropriate to do so, seek further information about the nominated person from the agency.
(4) If:
(a) the Commissioner decides that the nominated person is suitable for inclusion in the NWPP; and
(b) the Minister, after considering a report from the Commissioner recommending the inclusion of the person in the NWPP, has decided that it is appropriate in all the circumstances that the person be included in the NWPP; and
(c) the Commissioner has entered into an arrangement with the agency for the purpose of making services under the NWPP available to the agency; and
(d) the nominated person has been granted a visa for entry to Australia;
the Commissioner is to include the nominated person in the NWPP.
(5) An arrangement referred to in paragraph (4)(c) must include procedures under which the agency pays the costs associated with providing protection for the nominated person and any associated persons, including:
(a) the costs of travel by those persons and the costs of associated travel by members; and
(b) any costs that will be incurred if protection and assistance under the NWPP to the nominated person is terminated; and
(c) such other costs as the Commissioner determines.
10A Inclusion of persons in NWPP at the request of International Criminal Court
(1) If:
(a) the Minister receives a request from the International Criminal Court for the inclusion of a person (the nominated person) in the NWPP; and
(b) the Minister is satisfied that:
(i) the Court has provided all material that is necessary to support the request; and
(ii) it is appropriate to do so in all the circumstances; the Minister is to refer the request to the Commissioner.
(2) The Commissioner is to consider including the nominated person in the NWPP in the same way as the Commissioner would consider including another person in the NWPP.
(3) The Commissioner may, if he or she thinks it appropriate to do so, seek further information about the nominated person from the Court.
(4) If:
(a) the Commissioner decides that the nominated person is suitable for inclusion in the NWPP; and
(b) the Minister, after considering a report from the Commissioner recommending the inclusion of the person in the NWPP, has decided that it is appropriate in all the circumstances that the person be included in the NWPP; and
(c) the Commissioner has entered into an arrangement with the Court for the purpose of making services under the NWPP available to the Court; and
(d) if the person is not an Australian citizen—the nominated
person has been granted a visa for entry to Australia; the Commissioner is to include the nominated person in the NWPP.
(5) An arrangement referred to in paragraph (4)(c) must include procedures under which the Court pays the costs associated with providing protection for the nominated person and any associated persons, including:
(a) the costs of travel by those persons and the costs of associated travel by members; and
(b) any costs that will be incurred if protection and assistance under the NWPP to the nominated person is terminated; and
(c) such other costs as the Commissioner determines.
(6) In this section:
International Criminal Court has the same meaning as in the International Criminal Court Act 2002.
11 Register of participants
(1) The Commissioner is to maintain a Register of participants.
(2) The Register may be maintained by electronic means.
(3) The Commissioner is to include the following details in the Register in respect of each participant:
(a) the participant’s name;
(b) if the participant has been provided with a new identity under the NWPP—the participant’s new name for each new identity;
(c) the participant’s address;
(d) details of any offences of which the participant has been convicted;
(e) in the case of a former participant—the date on which the person became a former participant.
(4) The Commissioner is also to include in the Register details of any permissions given by the Commissioner under section 16.
(5) The Commissioner is to keep in conjunction with the Register:
(a) the original of each memorandum of understanding; and
(b) copies of each new birth certificate that is issued under the NWPP; and
(c) the original of each permission given by the Commissioner under section 16; and
(d) any documents returned to the Commissioner as a result of a notification under subsection 19(6).
(6) In this section, participant and former participant do not include a person who is a former participant only because of the operation of subsection 13(6).
12 Access to Register
(1) Subject to this section, only the Commissioner, and persons who hold or occupy designated positions and who are authorised by the Commissioner, are to have access to the Register and to documents kept in conjunction with the Register.
(2) The Commissioner must allow the Commonwealth Ombudsman, or a person authorised by the Commonwealth Ombudsman who has a national security clearance at the level of “secret” or “top secret” or a position of trust clearance at the level of “highly protected”, to have access to the Register or part of the Register or to some or all of the documents kept in conjunction with the Register for the purposes of:
(a) an investigation by the Ombudsman under the Ombudsman Act 1976; or
(b) an investigation under Part V of the Australian Federal Police Act 1979.
(3) The Commissioner may, if he or she is of the opinion that it is in the interests of the due administration of justice to do so, allow another person to have access to the Register or part of the Register or to some or all of the documents kept in conjunction with the Register.
(4) If the Commissioner allows another person access under subsection (3), the Commissioner must notify the relevant approved authority of:
(a) the name of the person to whom the access was allowed; and
(b) the information the person was allowed access to; and
(c) the reasons for allowing access.
13 Action to protect witnesses, participants and former participants etc.
(1) If a witness is included in the NWPP, or is being assessed for inclusion in the NWPP, the Commissioner is to take such action as the Commissioner considers necessary and reasonable to protect the witness’s safety and welfare while also protecting the safety of the Commissioner, a Deputy Commissioner, AFP employees and special members of the Australian Federal Police.
(2) That action may include:
(a) applying for any documents necessary:
(i) to allow the witness to establish a new identity; or
(ii) otherwise to protect the witness; and
(b) permitting persons who hold or occupy designated positions to acquire and use assumed identities in accordance with Part IAC of the Crimes Act 1914; and
(c) relocating the witness; and
(d) providing accommodation for the witness; and
(e) providing transport for the witness’s property; and
(f) providing payments to the witness for the purpose of meeting the reasonable living expenses of the witness (including, where appropriate, living expenses of the witness’s family) and providing, whether directly or indirectly, other reasonable financial assistance; and
(g) providing payments to the witness for the purpose of meeting costs associated with relocation; and
(h) providing assistance to the witness in obtaining employment or access to education; and
(i) providing other assistance to the witness with a view to ensuring that the witness becomes self-sustaining; and
(j) doing other things that the Commissioner considers to be necessary to ensure the safety of the witness.
(3) The Commissioner must not obtain documentation for a witness that represents the witness:
(a) to have qualifications that the witness does not have; or
(b) to be entitled to benefits to which the witness would not otherwise be entitled.
(4) A Commonwealth officer must not prepare documentation relating to the establishment of a new identity for a participant unless the officer has a national security clearance at the level of “secret” or “top secret” or a position of trust clearance at the level of “highly protected”.
(5) The Commissioner may take the actions referred to in subsections (1) and (2) in respect of a former participant, or any
other person whose relationship with the former participant is such that the Commissioner is satisfied that it is appropriate to take those actions, as if the former participant or other person were a witness included in the NWPP, if:
(a) the Commissioner considers the actions necessary and reasonable for the protection of the former participant or the other person; and
(b) the Commissioner has assessed the suitability of taking the actions in respect of the former participant or the other person.
(6) If the Commissioner takes action under subsection (5) in respect of a person other than a former participant, this Act applies to the person as if the person were a former participant.
(7) When the Commissioner first takes action under subsection (5) in respect of a former participant who was a participant under section 10 or 10A, the Commissioner must give the Immigration
Secretary, or an officer nominated by that Secretary, written notice that he or she has taken that action.
14 Special provision in case of marriage of participant
If:
(a) a participant who has been provided with a new identity under the NWPP wishes to marry; and
(b) the participant has given to the Commissioner or an approved authority evidence that satisfies the Commissioner or the approved authority:
(i) that the participant is of marriageable age; and
(ii) of the original identity of the participant; and
(c) 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
(d) 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;
the Commissioner or the approved authority may give a certificate to a Registrar stating that the Commissioner or the authority has received the evidence referred to in paragraphs (b) and (c) and the statutory declaration referred to in paragraph (d).
15 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 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 will accept process issued by a court or tribunal on behalf of the participant, and nominating a member for the purpose.
(3) If the Commissioner is satisfied that a participant who has been provided with a new identity under the NWPP is using the new identity to:
(a) avoid obligations that were incurred before the new identity was established; or
(b) 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.
(4) The notice is also to state that, unless the participant satisfies the Commissioner 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.
(5) 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 original identity or a former NWPP identity.
16 Non-disclosure of former identity of participant
(1) If:
(a) a participant who has been provided with a new identity under the NWPP would, apart from this section, be required by or under a law of the Commonwealth to disclose his or her original identity or a former NWPP identity for a particular purpose; and
(b) the Commissioner has given the participant permission, in the prescribed form, not to disclose the original identity or the former NWPP identity for that purpose;
the participant is not required to disclose the original identity or the
former NWPP identity to any person for that purpose.
(2) If a participant has been given permission under subsection (1) not to disclose his or her original identity or any former NWPP 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 the Commonwealth, to claim that his or her current NWPP identity is his or her only identity.
(3) It is the duty of each Commonwealth officer and former Commonwealth officer who has obtained access to information or a document relevant to the NWPP not to disclose that information or publish that document except as authorised by the Commissioner.
(4) If, under a complementary witness protection law of a State or Territory, it is lawful for a participant not to disclose his or her original identity or any former NWPP identity for a purpose approved by the Commissioner, the participant is not required to disclose his or her original identity or any former NWPP identity to a Commonwealth officer 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 under a complementary witness protection law of a State or Territory.
17 Special commercial arrangements by Commissioner
This Act does not prevent the Commissioner from making commercial arrangements with a person under which a participant is able to obtain benefits under a contract or arrangement without revealing his or her original identity or any former NWPP identity.
18 Termination of inclusion in NWPP and other protection and assistance
Termination of inclusion in NWPP
(1) A participant’s inclusion in the NWPP:
(a) must be terminated by the Commissioner if the participant requests in writing that it be terminated; or
(b) may be terminated by a Deputy Commissioner if:
(i) the participant deliberately breaches a term of the memorandum of understanding; or
(ii) the Deputy Commissioner discovers that the participant had knowingly given information to the Commissioner that is false or misleading in a material particular; or
(iii) the participant’s conduct or threatened conduct is, in the opinion of the Deputy Commissioner, likely to compromise the integrity of the NWPP; or
(iv) the circumstances that gave rise to the need for the participant’s inclusion in the NWPP cease to exist; or
(v) the participant deliberately breaches an undertaking, including an undertaking to give evidence, given to the Commonwealth, a State or Territory in relation to a matter relevant to the NWPP; or
(vi) the participant refuses or fails to sign a new memorandum of understanding when required to do so under subsection 8(5); or
(vii) there is, in the opinion of the Deputy Commissioner, no reasonable justification for the participant to remain included in the NWPP;
and the Deputy Commissioner is of the opinion that, in the circumstances of the case, the participant’s inclusion in the NWPP should be terminated.
(2) If a Deputy Commissioner makes a decision under
paragraph (1)(b) that a participant’s inclusion in the NWPP be terminated (the termination decision), the Deputy Commissioner must:
(a) take reasonable steps to notify the participant of the decision; and
(b) notify the relevant approved authority of the decision.
Termination of protection and assistance to former participants etc.
(2A) Protection and assistance provided under subsection 13(5) to a person (including a former participant):
(a) must be terminated by the Commissioner if the person requests in writing that it be terminated; or
(b) may be terminated by a Deputy Commissioner if:
(i) the Deputy Commissioner discovers that the person had knowingly given information to the Commissioner that is false or misleading in a material particular; or
(ii) the person’s conduct or threatened conduct is, in the opinion of the Deputy Commissioner, likely to compromise the integrity of the NWPP; or
(iii) the circumstances that gave rise to the need for protection and assistance for the person cease to exist; or
(iv) the person deliberately breaches an undertaking given to the Commonwealth, a State or a Territory that is relevant to the provision of that protection and assistance; or
(v) there is, in the opinion of the Deputy Commissioner, no reasonable justification for protection and assistance to continue to be provided to the person;
and the Deputy Commissioner is of the opinion that, in the circumstances of the case, the protection and assistance should be terminated.
(2B) If a Deputy Commissioner makes a decision under
paragraph (2A)(b) that protection and assistance provided to a person be terminated (the termination decision), the Deputy Commissioner must take reasonable steps to notify the person of the decision.
Review
(3) A person who receives notification of a termination decision may, within 28 days after receiving the notice, apply in writing to the Commissioner for a review of the decision of the Deputy Commissioner.
(4) If an application is made, the Commissioner:
(a) must review the decision of the Deputy Commissioner, and confirm, reverse or vary it; and
(b) before making that decision, must give the person a reasonable opportunity to state his or her case; and
(c) after making that decision, must inform the person in writing of the decision.
When termination decisions take effect
(5) A termination decision that relates to a person:
(a) if:
(i) the person’s whereabouts are not known; and
(ii) the Deputy Commissioner has taken reasonable steps to notify the person of the decision but has been unable to do so;
takes effect at the end of the period of 28 days after those steps were commenced; or
(b) if the person does not apply for a review of the decision in accordance with subsection (3)—takes effect at the end of the period of 28 days after the person receives the notification; or
(c) if the person applies for a review of the decision in accordance with subsection (3) and the Commissioner notifies the person that he or she has reversed the decision— has no effect; o
(d) if the person applies for a review of the decision in accordance with subsection (3) and the Commissioner notifies the person that he or she has confirmed the decision—takes effect when the Commissioner notifies the person of the decision on the review; or
(e) if the person applies for a review of the decision in accordance with subsection (3) and the Commissioner notifies the person that he or she has varied the decision— takes effect on the day specified by the Commissioner.
Notification of Immigration Secretary
(6) If:
(a) a Deputy Commissioner makes a termination decision in relation to a person; and
(b) the person was at any time a participant under section 10 or 10A;
the Commissioner must give the Immigration Secretary, or an officer nominated by that Secretary, written notice of that decision.
(7) In this section:
participant does not include a former participant .
19 Restoration of former identity
(1) If a participant has been provided with a new identity under the NWPP, a Deputy Commissioner may, if he or she considers it appropriate to do so, take such action as is necessary to restore the original identity or any former NWPP identity of the participant.
(2) The Deputy Commissioner must take reasonable steps to notify the participant of a decision under subsection (1).
(3) If the Deputy Commissioner proposes to take action to restore the original identity or any former NWPP identity of the participant, the participant may apply in writing to the Commissioner for a review of the decision of the Deputy Commissioner.
(4) If an application is made, the Commissioner:
(a) must review the decision of the Deputy Commissioner 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 or a Deputy Commissioner takes action under this section to restore the original identity or any former NWPP identity of a Commonwealth participant, a State participant or a Territory participant, the Commissioner or a Deputy Commissioner may give a notice to the participant under subsection (6).
(6) The notice:
(a) must be in writing; and
(b) must require the participant to return to the Commissioner, within 10 days of the giving of the notice, all documents provided to the participant that relate to:
(i) the participant’s current NWPP identity; and
(ii) any former NWPP identity of the participant that is not being restored.
(7) A person commits an offence if:
(a) the person is given a notice under subsection (6); and
(b) the person refuses or fails to comply with the notice.
Penalty: 10 penalty units.
20 Provision of information to approved authorities
If:
(a) a participant has been provided with a new identity or has been relocated under the NWPP; and
(b) an approved authority or a member notifies the
Commissioner that the participant is under investigation for, or has been arrested for or charged with, an offence against a law of the Commonwealth or of a State or Territory the maximum penalty for which is or includes imprisonment for a period of more than one year;
the Commissioner may:
(c) release to the approved authority or the member the current NWPP identity or current location of the participant; and
(d) provide the approved authority or the member with the criminal record of the participant and the participant’s fingerprints; and
(e) release to the approved authority or the member such other information relating to the NWPP as the Commissioner considers appropriate in the circumstances; and
(f) if the Commissioner considers it appropriate to do so in the circumstances—allow officers of the approved authority or the member to interview the Commissioner, a Deputy Commissioner, AFP employees or special members of the Australian Federal Police in relation to the participant.
21 Officers protected from suit in respect of decisions under Act
The Commissioner, delegates of the Commissioner and other persons performing functions in relation to the NWPP are not liable to any action, suit or proceedings (including criminal proceedings) in respect of an act done or omitted to be done in good faith in the exercise or purported exercise of a power conferred, or the performance or purported performance of a function conferred or a duty imposed, by this Act.
22 Offences relating to Commonwealth or Territory participants
Disclosure of information about Commonwealth or Territory participant
(1) A person commits an offence if:
(a) the person discloses information about an individual; and
(b) the individual is a participant; and
(c) the individual is a Commonwealth participant or a Territory participant; and
(d) either or both of the following apply:
(i) the individual has a current NWPP identity at the time the information is disclosed and the information is about the original identity or a former NWPP identity of the individual;
(ii) there is a risk that disclosure of the information will reveal that the individual is a participant.
Penalty: Imprisonment for 2 years.
Disclosure of information about individual undergoing assessment as Commonwealth or Territory participant
(2) A person commits an offence if:
(a) the person discloses information about an individual; and
(b) the individual is undergoing assessment for inclusion in the NWPP at the time the information is disclosed; and
(c) if the individual were included in the NWPP following that assessment, the individual would be a Commonwealth participant or a Territory participant; and
(d) there is a risk that disclosure of the information will reveal that the individual is undergoing such assessment.
Penalty: Imprisonment for 2 years.
Disclosure of information that may compromise security of Commonwealth or Territory participant
(3) A person commits an offence if:
(a) the person discloses information about an individual; and
(b) the individual is a participant; and
(c) the individual is a Commonwealth participant or a Territory participant; and
(d) either or both of the following apply:
(i) the individual has a current NWPP identity at the time the information is disclosed and the information is about the original identity or a former NWPP identity of the individual;
(ii) there is a risk that disclosure of the information will reveal that the individual is a participant; and
(e) there is a risk that disclosure of the information will
compromise the security of the individual.
Penalty: Imprisonment for 10 years.
Disclosure of information that may compromise security of individual undergoing assessment as Commonwealth or Territory participant
(4) A person commits an offence if:
(a) the person discloses information about an individual; and
(b) the individual is undergoing assessment for inclusion in the NWPP at the time the information is disclosed; and
(c) if the individual were included in the NWPP following that assessment, the individual would be a Commonwealth participant or a Territory participant; and
(d) there is a risk that disclosure of the information will reveal that the individual is undergoing such assessment; and
(e) there is a risk that disclosure of the information will compromise the security of the individual.
Penalty: Imprisonment for 10 years.
(5) Subsections (1), (2), (3) and (4) do not apply to a disclosure by a person if:
(a) the person has been authorised by the Commissioner to make the disclosure; or
(b) the disclosure is made for the purpose of making a complaint, or providing information, to the Ombudsman under the Ombudsman Act 1976; or
(c) the disclosure is made for the purpose of referring to the Integrity Commissioner, under the Law Enforcement Integrity Commissioner Act 2006, an allegation or
information that raises a corruption issue; or
(d) the disclosure is made for the purpose of:
(i) giving information that raises an AFP conduct or practices issue (within the meaning of the Australian Federal Police Act 1979); or
(ii) investigating or resolving an AFP conduct or practices issue under Part V of that Act.
Note: A defendant bears an evidential burden in relation to the matters in
subsection (5) (see subsection 13.3(3) of the Criminal Code).
(6) Absolute liability applies to paragraphs (1)(c), (2)(c), (3)(c) and (4)(c).
Note: For absolute liability, see section 6.2 of the Criminal Code.
(7) To avoid doubt, a person may be convicted of an offence against subsection (1), (2), (3) or (4) because of a risk that a disclosure will have a particular effect even if the disclosure does not actually have that effect.
22A Offences relating to State participants
Disclosure of information about State participant
(1) A person commits an offence if:
(a) the person is:
(i) a Commonwealth officer; or
(ii) a Commonwealth participant; or
(iii) a State participant; or
(iv) a Territory participant; or
(v) any other person; and
(b) the person discloses information about an individual; and
(c) the individual is a participant; and
(d) the individual is a State participant; and
(e) either or both of the following apply:
(i) the individual has a current NWPP identity at the time the information is disclosed and the information is about the original identity or a former NWPP identity of the individual;
(ii) there is a risk that disclosure of the information will reveal that the individual is a participant; and
(f) if the person disclosing the information is a person other than a person referred to in subparagraph (a)(i), (ii) or (iv)—there is a risk that disclosure of the information will adversely affect the integrity of the NWPP.
Penalty: Imprisonment for 2 years.
Disclosure of information about individual undergoing assessment as State participant
(2) A person commits an offence if:
(a) the person is:
(i) a Commonwealth officer; or
(ii) a Commonwealth participant; or
(iii) a State participant; or
(iv) a Territory participant; or
(v) any other person; and
(b) the person discloses information about an individual; and
(c) the individual is undergoing assessment for inclusion in the NWPP at the time the information is disclosed; and
(d) if the individual were included in the NWPP following that assessment, the individual would be a State participant; and
(e) there is a risk that disclosure of the information will reveal that the individual is undergoing such assessment; and
(f) if the person disclosing the information is a person other than a person referred to in subparagraph (a)(i), (ii) or (iv)—there is a risk that disclosure of the information will adversely affect the integrity of the NWPP.
Penalty: Imprisonment for 2 years.
Disclosure of information that may compromise security of State participant
(3) A person commits an offence if:
(a) the person is:
(i) a Commonwealth officer; or
(ii) a Commonwealth participant; or
(iii) a State participant; or
(iv) a Territory participant; or
(v) any other person; and
(b) the person discloses information about an individual; and
(c) the individual is a participant; and
(d) the individual is a State participant; and
(e) either or both of the following apply:
(i) the individual has a current NWPP identity at the time the information is disclosed and the information is about the original identity or a former NWPP identity of the individual;
(ii) there is a risk that disclosure of the information will reveal that the individual is a participant; and
(f) there is a risk that disclosure of the information will compromise the security of the individual; and
(g) if the person disclosing the information is a person other than a person referred to in subparagraph (a)(i), (ii) or (iv)—there is a risk that the disclosure of the information will adversely affect the integrity of the NWPP.
Penalty: Imprisonment for 10 years.
Disclosure of information that may compromise security of
individual undergoing assessment as State participant
(4) A person commits an offence if:
(a) the person is:
(i) a Commonwealth officer; or
(ii) a Commonwealth participant; or
(iii) a State participant; or
(iv) a Territory participant; or
(v) any other person; and
(b) the person discloses information about an individual; and
(c) the individual is undergoing assessment for inclusion in the NWPP at the time the information is disclosed; and
(d) if the individual were included in the NWPP following that assessment, the individual would be a State participant; and
(e) there is a risk that disclosure of the information will reveal
that the individual is undergoing such assessment; and
(f) there is a risk that disclosure of the information will compromise the security of the individual; and
(g) if the person disclosing the information is a person other than a person referred to in subparagraph (a)(i), (ii) or (iv)—there is a risk that disclosure of the information will adversely affect the integrity of the NWPP.
Penalty: Imprisonment for 10 years.
(5) Subsections (1), (2), (3) and (4) do not apply to a disclosure by a person if:
(a) the person has been authorised by the Commissioner to make the disclosure; or
(b) the disclosure is made for the purpose of making a complaint, or providing information, to the Ombudsman under the Ombudsman Act 1976; or
(c) the disclosure is made for the purpose of referring to the Integrity Commissioner, under the Law Enforcement Integrity Commissioner Act 2006, an allegation or
information that raises a corruption issue; or
(d) the disclosure is made for the purpose of:
(i) giving information that raises an AFP conduct or practices issue (within the meaning of the Australian Federal Police Act 1979); or
(ii) investigating or resolving an AFP conduct or practices issue under Part V of that Act.
Note: A defendant bears an evidential burden in relation to the matters in
subsection (5) (see subsection 13.3(3) of the Criminal Code).
(6) Absolute liability applies to paragraphs (1)(d), (2)(d), (3)(d) and (4)(d).
Note: For absolute liability, see section 6.2 of the Criminal Code.
(7) To avoid doubt, a person may be convicted of an offence against subsection (1), (2), (3) or (4) because of a risk that a disclosure will have a particular effect even if the disclosure does not actually have that effect.
22B Offences relating to disclosure of information about the NWPP Disclosures by participants and persons undergoing assessment
(1) A person commits an offence if:
(a) the person is, or is undergoing or has undergone assessment for inclusion in the NWPP as, one of the following:
(i) a Commonwealth participant;
(ii) a Territory participant;
(iii) a State participant; and
(b) the person discloses any of the following:
(i) the fact that he or she is such a participant, or is undergoing or has undergone such assessment;
(ii) information about the way in which the NWPP operates;
(iii) information about the Commissioner, a Deputy Commissioner, any AFP employee or any special member of the Australian Federal Police who is or has been involved in the NWPP;
(iv) the fact that he or she has signed a memorandum of understanding;
(v) any details of a memorandum of understanding that he or she has signed.
Penalty: Imprisonment for 5 years.
Disclosures by other persons
(2) A person (other than a person referred to in paragraph (1)(a)) commits an offence if:
(a) the person discloses information; and
(b) the information is either or both of the following:
(i) information about the way in which the NWPP operates;
(ii) information about the Commissioner, a Deputy Commissioner, any AFP employee or any special member of the Australian Federal Police who is or has been involved in the NWPP; and
(c) there is a risk that disclosure of the information will do either or both of the following:
(i) adversely affect the integrity of the NWPP;
(ii) compromise the security of the Commissioner, a Deputy Commissioner, or an AFP employee or special member of the Australian Federal Police who is or has been involved in the NWPP.
Penalty: Imprisonment for 5 years.
(3) Subsections (1) and (2) do not apply to a disclosure by a person if:
(a) the person has been authorised by the Commissioner to make the disclosure; or
(b) the disclosure is made for the purpose of making a complaint, or providing information, to the Ombudsman under the Ombudsman Act 1976; or
(c) the disclosure is made for the purpose of referring to the Integrity Commissioner, under the Law Enforcement Integrity Commissioner Act 2006, an allegation or
information that raises a corruption issue; or
(d) the disclosure is made for the purpose of:
(i) giving information that raises an AFP conduct or practices issue (within the meaning of the Australian Federal Police Act 1979); or
(ii) investigating or resolving an AFP conduct or practices issue under Part V of that Act.
Note: A defendant bears an evidential burden in relation to the matters in
subsection (3) (see subsection 13.3(3) of the Criminal Code).
(4) To avoid doubt, a person may be convicted of an offence against subsection (2) because of a risk that a disclosure will have a particular effect even if the disclosure does not actually have that effect.
22C Disclosures to courts, etc.
(1) To avoid doubt, sections 22, 22A and 22B apply to a disclosure of information to:
(a) a court or tribunal; or
(b) a Royal Commission of the Commonwealth, a State or a Territory or any other commission of inquiry.
(2) The application of subsection (1) to the disclosure of information as mentioned in that subsection does not affect the operation of subsection 26(3).
23 Payments under NWPP not able to be confiscated
(1) The Commissioner may certify in writing that an amount held by a participant represents payments made to the participant under the NWPP.
(2) An amount so certified cannot be confiscated or restrained, and cannot be applied in payment of pecuniary penalties, under Division 3 of Part XIII of the Customs Act 1901, the Proceeds of Crime Act 1987, the Proceeds of Crime Act 2002, the Crimes (Superannuation Benefits) Act 1989 or the Australian Federal Police Act 1979.
24 Restriction on issue of Commonwealth identity documents
(1) Commonwealth identity documents must not, after the end of 12 months after the commencement of this Act, be issued for a person who is on a witness protection program being conducted by a State or Territory unless:
(a) an arrangement is in force between the Minister and the relevant State or Territory Minister relating to the issue of Commonwealth identity documents for the purposes of that program; and
(b) a complementary witness protection law is in force in the 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 Commonwealth identity documents for the purposes of such a program; and
(b) guidelines for the issue of those documents and other documents.
25 Delegation
(1) Subject to subsections (3) and (4), the Commissioner may, by writing, delegate all or any of his or her powers under this Act to a person who holds or occupies a designated position.
(2) A person who holds or occupies a designated position may exercise powers delegated to the person by the Commissioner under a complementary witness protection law.
(3) The Commissioner’s powers under sections 6, 8, 14, 16, 18, 20, 27 and 27A and subsections 12(2) and (3) may only be delegated to a Deputy Commissioner.
(4) The Commissioner’s powers and functions under subsections 13(5) and (7) may only be delegated to a Deputy Commissioner, an Assistant Commissioner, or a person occupying an equivalent or higher rank in the Australian Federal Police.
26 Commissioner and members not to be required to disclose information
(1) Subject to subsection (3), the Commissioner, a Deputy Commissioner, an AFP employee or a special member of the Australian Federal Police is not to be required:
(a) to produce in a court, or before a tribunal, a Royal Commission of the Commonwealth, a State or a Territory or any other commission of inquiry, any document that has come into the custody or control of the person in the course of, or because of, the performance of functions or duties, or the exercise of powers, under this Act; or
(b) to divulge or communicate to or before such a body any matter or thing that has come to the notice of the person in the performance of functions or duties, or the exercise of powers, under this Act; or
(c) to divulge or communicate to or before such a body information, if:
(i) the information is about the identity of, or disclosure of the information is such as to reveal the identity of, an AFP employee or special member of the Australian Federal Police who is involved in the operation of the NWPP; and
(ii) the person has the information as a result of the performance of functions or duties, or the exercise of powers, under this Act;
except where it is necessary to do so for the purpose of carrying the provisions of this Act into effect.
(2) Subject to subsection (3), the Commonwealth Ombudsman or a member of the staff of the Commonwealth Ombudsman is not to be required:
(a) to produce in a court, or before a tribunal, a Royal Commission of the Commonwealth, a State or a Territory or any other commission of inquiry, any document that has come into the custody or control of the person in relation to this Act; or
(b) to divulge or communicate to or before such a body any matter or thing that has come to the notice of the person in relation to this Act; or
(c) to divulge or communicate to or before such a body information, if:
(i) the information is about the identity of, or disclosure of the information is such as to reveal the identity of, an AFP employee or special member of the Australian Federal Police who is involved in the operation of the NWPP; and
(ii) the person has the information as a result of the performance of functions or duties, or the exercise of powers, in relation to this Act;
except where it is necessary to do so for the purpose of carrying the provisions of this Act into effect.
(3) If it is essential to the determination of legal proceedings under or in relation to a law of the Commonwealth, a State or a Territory that the judge or magistrate presiding over the proceedings be advised of a participant’s location and circumstances, a person referred to in subsection (1) or (2) is to disclose the relevant information to the judge or magistrate in chambers, but the person must not disclose the information if any person other than the judge or magistrate and the person is present.
(4) The judge or magistrate must not disclose any information disclosed to the judge or magistrate under subsection (3) otherwise than in accordance with this Act.
(5) Subsection (1) does not apply to information about a financial support arrangement for a participant if the information is provided in a way that cannot identify the location, or prejudice the safety, of the participant.
27 Requirement where participant becomes a witness in criminal proceedings
(1) If:
(a) a participant is to be a witness, under the participant’s current NWPP identity, in a criminal proceeding; and
(b) the participant has a criminal record under his or her original identity or any former NWPP identity;
the participant must notify the Commissioner that the participant is to be a witness in the proceeding.
(2) After being notified under subsection (1), the Commissioner may take any action he or she considers appropriate in the circumstances, including disclosing to the court, the prosecutor and the accused person or the accused person’s legal representative the criminal record of the participant.
27A Requirement where participant involved in civil proceedings
(1) If a participant is to be involved, under the participant’s current NWPP identity, in a civil proceeding in which his or her identity is in issue, the participant must notify the Commissioner that the participant is involved in the proceeding.
(2) After being notified under subsection (1), the Commissioner may take any action he or she considers appropriate in the circumstances.
(3) In this section:
civil proceeding means any proceeding in a court, a tribunal or a Royal Commission of the Commonwealth, a State or a Territory or any other commission of inquiry, other than a criminal proceeding, and, to avoid doubt, each of the following is part of a civil proceeding:
(a) any proceeding on an ex parte application (including an application made before pleadings are filed in a court);
(b) the discovery, exchange, production, inspection or disclosure of intended evidence, documents and reports of persons intended to be called by a party to give evidence;
(c) an appeal proceeding;
(d) any interlocutory or other proceeding prescribed by regulations for the purposes of this paragraph.
28 Identity of participant not to be disclosed in court proceedings etc.
(1) This section applies if one of more of the following matters is in issue, or may be disclosed, in any proceedings before a court, a tribunal, or a Royal Commission of the Commonwealth, a State or a Territory or any other commission of inquiry:
(a) the original identity or a former NWPP identity of:
(i) a Commonwealth participant; or
(ii) a State participant; or
(iii) a Territory participant;
(b) the fact that a person is such a participant;
(c) the fact that a person has undergone or is undergoing assessment for inclusion in the NWPP as such a participant.
(2) The court, tribunal or commission:
(a) must, unless it considers that it is not in the interests of justice to do so, hold in private that part of the proceedings that relates to the matter referred to in paragraph (1)(a), (b) or (c); and
(b) must make such orders relating to the suppression of publication of evidence given before it as, in its opinion, will ensure that the matter referred to in paragraph (1)(a), (b) or
(c) is not made public; and must, unless it considers that it is not in the interests of justice to do so, make such other orders as it considers appropriate to ensure that neither of the following is made public:
(i) the matter referred to in paragraph (1)(a), (b) or (c);
(ii) information that may compromise the security of a person referred to in any of those paragraphs.
(3) To avoid doubt, paragraph (2)(b) does not prevent the taking of a transcript of court proceedings, but the court may make an order for how the transcript is to be dealt with, including an order suppressing its publication.
28A Offence of contravening an order under section 28
(1) A person commits an offence if:
(a) an order is in force under section 28; and
(b) the person engages in conduct; and
(c) the conduct contravenes the order.
Penalty: Imprisonment for 2 years.
(2) To avoid doubt, this section does not limit any other powers of the body that made the order under section 28
2 Commencement [see Note 1]
(1) This Act commences on a day to be fixed by Proclamation.
(2) If this Act does not commence under subsection (1) within the period of 6 months beginning on the day on which it receives the Royal Assent, it commences on the first day after the end of that period.
3 Interpretation
In this Act, unless the contrary intention appears:
AFP employee has the same meaning as in the Australian Federal Police Act 1979.
approved authority means:
(a) a Commissioner (however designated) of the police force of a State or Territory; or
(aa) the Integrity Commissioner (within the meaning of the Law Enforcement Integrity Commissioner Act 2006); or
(b) the Chief Executive Officer of the Australian Crime Commission; or
(c) an authority or body of the Commonwealth or of a State or 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 notice in the Gazette to be an approved authority for the purposes of this Act.
Commissioner means the Commissioner of the Australian Federal Police.
Commonwealth identity document means a passport, a tax file number within the meaning of section 202A of the Income Tax Assessment Act 1936 or another document prescribed for the purposes of this definition.
Commonwealth officer has the same meaning as in section 3 of the Crimes Act 1914.
Commonwealth participant means a person who is a participant:
(a) in relation to an offence against a law of the Commonwealth; or
(b) in relation to a Royal Commission under the Royal Commissions Act 1902 or another commission or inquiry under a law of the Commonwealth; or
(c) in relation to an inquiry instituted by a House of the Parliament; or
(d) under section 10 or 10A.
complementary witness protection law means a law of a State or Territory that:
(a) makes provision for the protection of witnesses; and
(b) is declared by the Minister by notice published in the Gazette to be a complementary witness protection law.
Deputy Commissioner means a Deputy Commissioner of the Australian Federal Police.
designated position means a position of a Deputy Commissioner, an AFP employee or a special member of
the Australian Federal Police:
(a) the duties of which relate to the NWPP and:
(i) require the occupant to have a national security clearance because those duties involve access to national security information classified as “secret” or “top secret”; or
(ii) require the occupant to have a position of trust clearance at the level of “highly protected” because those duties involve access to sensitive information; and
(b) that has been declared in writing by the Commissioner to be a designated position for the purposes of this Act.
member means a member or special member of the Australian Federal Police.
national security clearance means a clearance that enables a person to have access to national security information or to an area that has been designated as secure.
national security information means information affecting the defence, security or international relations of
Australia.
NWPP means the National Witness Protection Program established by this Act.
participant means a person who is included in the NWPP.
position of trust clearance means a clearance that enables a person to have access to sensitive material or to resources of a valuable or attractive nature.
Registrar means a person who occupies the position of Registrar of births, deaths and marriages, however described, of a State or Territory.
sensitive information includes material and resources (other than national security information) the unauthorised disclosure, loss, compromise, misuse or damage of which could reasonably be expected to:
(a) cause serious harm to a person, a government or the legitimate activities of an agency; or
(b) be seriously prejudicial to the establishment and maintenance of lawful methods for the protection of public safety.
witness means:
(a) a person who has given, or who has agreed to give, evidence on behalf of the Crown in right of the Commonwealth or of a State or Territory in:
(i) proceedings for an offence; or
(ii) hearings or proceedings before an authority that is declared by the Minister by notice in the Gazette to be an authority to which this paragraph applies; or
(b) a person who has given, or who has 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 the Commonwealth or of a State or Territory; or
(c) a person who has made a statement to the Australian Federal Police or an approved authority in relation to an offence against a law of the Commonwealth or of a State or Territory; or
(d) a person who, for any other reason, may require protection or other assistance under the NWPP; or
(e) a person who, because of his or her relationship to, or association with, such a person may require protection or other assistance under the NWPP.
3A Application of the Criminal Code
Chapter 2 of the Criminal Code applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
4 Establishment of the National Witness Protection Program
(1) The Commissioner is to maintain a program, to be known as the National Witness Protection Program, under which the Commissioner, and persons who hold or occupy designated positions, arrange or provide protection and other assistance for witnesses.
(2) That protection and assistance may include things done as a result of powers and functions conferred on the Commissioner under a complementary witness protection law.
5 Inclusion in NWPP not to be done as a reward for giving evidence etc.
The inclusion of a witness in the NWPP is not to be done as a reward or as a means of persuading or encouraging the witness to give evidence or to make a statement.
6 Arrangements with approved authorities
(1) The Commissioner 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, those arrangements:
(a) may provide for the Commissioner or a member to perform functions or exercise powers conferred by a complementary witness protection law; and
(b) must include procedures under which the authority shares with the Commonwealth the costs incurred in providing those services; and
(c) may provide for the authority to make available to the Commissioner such statements, transcripts of evidence and other documents as will assist the Commissioner in deciding:
(i) whether to include a witness in the NWPP; and
(ii) what protection and assistance is appropriate for a participant; and
(d) may confer powers and functions under complementary witness protection laws on the Commissioner.
(3) The functions of the Commissioner under this Act do not include the provision of services under such an arrangement in relation to a law of a State or Territory unless the provision of those services is authorised to the extent necessary by the State or Territory concerned.
7 Witness to disclose certain matters before being included in the NWPP
(1) The Commissioner is not to include a witness in the NWPP unless the Commissioner is satisfied that the witness has provided the Commissioner with all information necessary for the Commissioner to decide whether the witness should be included.
(2) Without limiting the generality of subsection (1), a witness must:
(a) disclose to the Commissioner details of all outstanding legal obligations of the witness; and
(b) disclose to the Commissioner details of any outstanding debts of the witness, including amounts outstanding for any tax, including a tax under a law of a State or Territory; and
(c) disclose to the Commissioner details of the witness’s criminal history; and
(d) disclose to the Commissioner details of any civil proceedings that have been instituted by or against the witness; and
(e) disclose to the Commissioner details of any bankruptcy proceedings that have been instituted against the witness; and
(f) inform the Commissioner whether the witness is an undischarged bankrupt under the Bankruptcy Act 1966 and, if the witness is, give to the Commissioner copies of all documents relating to the bankruptcy; and
(g) inform the Commissioner whether the witness has entered into or intends to enter into a personal insolvency agreement under Part X of the Bankruptcy Act 1966 and, if the witness has done or intends to do such a thing, give to the Commissioner copies of all documents relating to that thing; and
(h) inform the Commissioner whether there are any restrictions on the witness’s holding positions in companies, whether public or private and, if there are, give to the Commissioner copies of all documents relating to those restrictions; and
(i) disclose to the Commissioner details of the witness’s immigration status; and
(j) disclose to the Commissioner details of financial liabilities and assets (whether real or personal) of the witness in relation to which:
(i) a record is kept under a law of a State or Territory; or
(ii) the witness has entered into a contractual arrangement; and
(k) disclose to the Commissioner details of any cash held by the witness, whether in accounts or otherwise; and
(l) disclose to the Commissioner details of any reparation order that is in force against the witness; and
(m) inform the Commissioner whether any of the witness’s property (whether real or personal) is liable to forfeiture or confiscation or is subject to restraint under a law of the Commonwealth or of a State or Territory; and
(n) inform the Commissioner of the witness’s general medical condition; and
(o) disclose to the Commissioner details of any relevant court orders or arrangements relating to custody or access to children; and
(p) disclose to the Commissioner details of any business dealings in which the witness is involved; and
(q) disclose to the Commissioner details of court orders relating to sentences imposed on the witness to which the witness is subject in relation to criminal prosecutions; and
(r) disclose to the Commissioner details of any parole or licence to which the witness is subject; and
(s) give to the Commissioner copies of any documents relating to any such orders, parole or licence; and
(t) disclose to the Commissioner details of any arrangements that the witness has made for:
(i) the service of documents on the witness; or
(ii) representation in proceedings in a court; or
(iii) enforcement of judgments in the witness’s favour; or
(iv) compliance with the enforcement of judgments against the witness.
(3) The Commissioner may also:
(a) require the witness to undergo:
(i) medical tests or examinations; or
(ii) psychological or psychiatric examinations;
and to make the results available to the Commissioner; or
(b) make such other inquiries and investigations as the Commissioner considers necessary;
for the purposes of assessing whether the witness should be included in the NWPP.
8 Selection for inclusion in the NWPP
(1) The Commissioner has the sole responsibility of deciding whether to include a witness in the NWPP, including cases where an approved authority has requested that a witness be included in the NWPP.
(2) A witness may be included in the NWPP only if:
(a) the Commissioner 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 9 or:
(i) if the witness is under 18 years—a parent or guardian of the witness signs such a 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 such a memorandum.
(3) The Commissioner must, in deciding whether to include a witness in the NWPP, have regard to:
(a) 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 NWPP; and
(b) if a psychological or psychiatric examination or evaluation of the witness has been conducted to determine the witness’s suitability for inclusion in the NWPP—that examination or evaluation; and
(c) the seriousness of the offence to which any relevant evidence or statement relates; and
(d) the nature and importance of any relevant evidence or statement; and
(e) whether there are viable alternative methods of protecting the witness; and
(f) the nature of the perceived danger to the witness; and
(g) the nature of the witness’s relationship to other witnesses being assessed for inclusion in the NWPP;
and may have regard to such other matters as the Commissioner considers relevant.
(4) The Commissioner must not include a witness in the NWPP if the Commissioner does not, in his or her opinion, have enough information to assess the matters referred to in subsection (3) in relation to the witness.
(5) If:
(a) a parent or guardian of a witness signs a memorandum of understanding because the witness was under 18 years; and
(b) the witness is included in the NWPP and remains a participant until after he or she turns 18;
the Commissioner may require the participant to sign another memorandum of understanding.
9 Memorandum of understanding
(1) A memorandum of understanding is to:
(a) set out the basis on which a participant is included in the NWPP and details of the protection and assistance that is to be provided; and
(b) contain a provision to the effect that protection and assistance under the NWPP may be terminated if the participant breaches a term of the memorandum of understanding.
(2) A memorandum of understanding in relation to a participant may also contain:
(a) the terms and conditions on which protection and assistance is to be provided to the participant, which may include a condition that protection and assistance may be withdrawn if the participant:
(i) commits an offence against a law of the Commonwealth or of a State or Territory; or
(ii) engages in activities of a kind specified in the memorandum of understanding; or
(iii) compromises the integrity of the NWPP; and
(b) an agreement by or on behalf of the participant not to compromise, directly or indirectly, the security of, or any other aspect of, the protection or assistance being provided; and
(c) an agreement by or on behalf of the participant that the participant comply with all reasonable directions of the Commissioner in relation to the protection and assistance provided to the participant; and
(d) an agreement by or on behalf of the participant that the participant will, if required to do so by the Commissioner:
(i) undergo medical, psychological or psychiatric tests or examinations and make the results available to the Commissioner; or
(ii) undergo drug or alcohol counselling or treatment; and
(e) a list of:
(i) the outstanding legal obligations (including family maintenance obligations and taxation obligations) of the participant; and
(ii) any other obligations of the participant;
and an agreement by or on behalf of the participant as to how those obligations are to be met; and
(f) a financial support arrangement; and
(g) an agreement by or on behalf of the participant that the participant will disclose to the Commissioner details of any criminal charges that are made against, and any civil or bankruptcy proceedings that are made in relation to, the participant after the participant is included in the NWPP.
(3) A memorandum of understanding must be signed by or on behalf of the witness in the presence of a person who holds or occupies a designated position.
(4) A witness becomes included in the NWPP when the Commissioner signs the memorandum of understanding.
(5) The Commissioner must, as soon as practicable after signing a memorandum of understanding, notify the relevant participant that it has been signed.
(6) Subject to subsection (7), the Commissioner may, by notice in writing given to a participant, vary the memorandum of understanding, and a variation takes effect on the day on which the notice is received by the participant.
(7) A variation must not have the effect of removing from the memorandum of understanding the provisions referred to in subsection (1).
10 Inclusion of foreign nationals or residents in NWPP at the request of foreign law enforcement agencies
(1) If:
(a) the Minister receives a request from an appropriate authority of a foreign country (the agency) for the inclusion of a person (the nominated person) who is a citizen or a resident of that country in the NWPP; and
(b) the Minister is satisfied that:
(i) the agency has provided all material that is necessary to support the request; and
(ii) it is appropriate to do so in all the circumstances;
the Minister is to refer the request to the Commissioner.
(2) The Commissioner is to consider including the nominated person in the NWPP in the same way as the Commissioner would consider including another person in the NWPP.
(3) The Commissioner may, if he or she thinks it appropriate to do so, seek further information about the nominated person from the agency.
(4) If:
(a) the Commissioner decides that the nominated person is suitable for inclusion in the NWPP; and
(b) the Minister, after considering a report from the Commissioner recommending the inclusion of the person in the NWPP, has decided that it is appropriate in all the circumstances that the person be included in the NWPP; and
(c) the Commissioner has entered into an arrangement with the agency for the purpose of making services under the NWPP available to the agency; and
(d) the nominated person has been granted a visa for entry to Australia;
the Commissioner is to include the nominated person in the NWPP.
(5) An arrangement referred to in paragraph (4)(c) must include procedures under which the agency pays the costs associated with providing protection for the nominated person and any associated persons, including:
(a) the costs of travel by those persons and the costs of associated travel by members; and
(b) any costs that will be incurred if protection and assistance under the NWPP to the nominated person is terminated; and
(c) such other costs as the Commissioner determines.
10A Inclusion of persons in NWPP at the request of International Criminal Court
(1) If:
(a) the Minister receives a request from the International Criminal Court for the inclusion of a person (the nominated person) in the NWPP; and
(b) the Minister is satisfied that:
(i) the Court has provided all material that is necessary to support the request; and
(ii) it is appropriate to do so in all the circumstances;
the Minister is to refer the request to the Commissioner.
(2) The Commissioner is to consider including the nominated person in the NWPP in the same way as the Commissioner would consider including another person in the NWPP.
(3) The Commissioner may, if he or she thinks it appropriate to do so, seek further information about the nominated person from the Court.
(4) If:
(a) the Commissioner decides that the nominated person is suitable for inclusion in the NWPP; and
(b) the Minister, after considering a report from the Commissioner recommending the inclusion of the person in the NWPP, has decided that it is appropriate in all the circumstances that the person be included in the NWPP; and
(c) the Commissioner has entered into an arrangement with the Court for the purpose of making services under the NWPP available to the Court; and
(d) if the person is not an Australian citizen—the nominated person has been granted a visa for entry to Australia;
the Commissioner is to include the nominated person in the NWPP.
(5) An arrangement referred to in paragraph (4)(c) must include procedures under which the Court pays the costs associated with providing protection for the nominated person and any associated persons, including:
(a) the costs of travel by those persons and the costs of associated travel by members; and
(b) any costs that will be incurred if protection and assistance under the NWPP to the nominated person is terminated; and
(c) such other costs as the Commissioner determines.
(6) In this section:
International Criminal Court has the same meaning as in the International Criminal Court Act 2002.
11 Register of participants
(1) The Commissioner is to maintain a Register of participants.
(2) The Register may be maintained by electronic means.
(3) The Commissioner is to include the following details in the Register in respect of each participant:
(a) the participant’s name;
(b) if the participant has been provided with a new identity under the NWPP—the participant’s new name;
(c) the participant’s address;
(d) details of any offences of which the participant has been convicted;
(e) the date on which the person ceases to be a participant.
(4) The Commissioner is also to include in the Register details of any permissions given by the Commissioner under section 16.
(5) The Commissioner is to keep in conjunction with the Register:
(a) the original of each memorandum of understanding; and
(b) copies of each new birth certificate that is issued under the NWPP; and
(c) the original of each permission given by the Commissioner under section 16; and
(d) any documents returned to the Commissioner as a result of a notification under subsection 19(2).
12 Access to Register
(1) Subject to this section, only the Commissioner, and persons who hold or occupy designated positions and who are authorised by the Commissioner, are to have access to the Register and to documents kept in conjunction with the Register.
(2) The Commissioner must allow the Commonwealth Ombudsman, or a person authorised by the Commonwealth Ombudsman who has a national security clearance at the level of “secret” or “top secret” or a position of trust clearance at the level of “highly protected”, to have access to the Register or part of the Register or to some or all of the documents kept in conjunction with the Register for the purposes of:
(a) an investigation by the Ombudsman under the Ombudsman Act 1976; or
(b) an investigation under Part V of the Australian Federal Police Act 1979.
(3) The Commissioner may, if he or she is of the opinion that it is in the interests of the due administration of justice to do so, allow another person to have access to the Register or part of the Register or to some or all of the documents kept in conjunction with the Register.
(4) If the Commissioner allows another person access under subsection (3), the Commissioner must notify the relevant approved authority of:
(a) the name of the person to whom the access was allowed; and
(b) the information the person was allowed access to; and
(c) the reasons for allowing access.
13 Action where a witness is included in the NWPP
(1) If a witness is included in the NWPP, or is being assessed for inclusion in the NWPP, the Commissioner is to take such action as the Commissioner considers necessary and reasonable to protect the witness’s safety and welfare while also protecting the safety of the Commissioner, a Deputy Commissioner, AFP employees and special members of the Australian Federal Police.
(2) That action may include:
(a) applying for any documents necessary:
(i) to allow the witness to establish a new identity; or
(ii) otherwise to protect the witness; and
(b) permitting persons who hold or occupy designated positions to use assumed names in carrying out their duties in relation to the NWPP and to carry documentation supporting those assumed names; and
(c) relocating the witness; and
(d) providing accommodation for the witness; and
(e) providing transport for the witness’s property; and
(f) providing payments to the witness for the purpose of meeting the reasonable living expenses of the witness (including, where appropriate, living expenses of the witness’s family) and providing, whether directly or indirectly, other reasonable financial assistance; and
(g) providing payments to the witness for the purpose of meeting costs associated with relocation; and
(h) providing assistance to the witness in obtaining employment or access to education; and
(i) providing other assistance to the witness with a view to ensuring that the witness becomes self—sustaining; and
(j) doing other things that the Commissioner considers to be necessary to ensure the safety of the witness.
(3) The Commissioner must not obtain documentation for a witness that represents the witness:
(a) to have qualifications that the witness does not have; or
(b) to be entitled to benefits to which the witness would not be entitled if the witness were not included in the NWPP.
(4) A Commonwealth officer must not prepare documentation relating to the establishment of a new identity for a participant unless the officer has a national security clearance at the level of “secret” or “top secret” or a position of trust clearance at the level of “highly protected”.
14 Special provision in case of marriage of participant
If:
(a) a participant who has been provided with a new identity under the NWPP wishes to marry; and
(b) the participant has given to the Commissioner or an approved authority evidence that satisfies the Commissioner or the approved authority:
(i) that the participant is of marriageable age; and
(ii) of the identity of the participant; and
(c) 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
(d) 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;
the Commissioner or the approved authority may give a certificate to a Registrar stating that the Commissioner or the authority has received the evidence referred to in paragraphs (b) and (c) and the statutory declaration referred to in paragraph (d).
15 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 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 will accept process issued by a court or tribunal on behalf of the participant, and nominating a member for the purpose.
(3) If the Commissioner is satisfied that a participant who has been provided with a new identity under the NWPP is using the new identity to:
(a) avoid obligations that were incurred before the new identity was established; or
(b) 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.
(4) The notice is also to state that, unless the participant satisfies the Commissioner 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.
(5) 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 former identity.
16 Non disclosure of former identity of participant
(1) If:
(a) a participant who has been provided with a new identity under the NWPP would, apart from this section, be required by or under a law of the Commonwealth to disclose his or her former identity for a particular purpose; and
(b) the Commissioner has given the participant permission, in the prescribed form, not to disclose his or her former identity for that purpose;
the participant is not required to disclose his or her former identity to any person for that purpose.
(2) If a participant has been given permission under subsection (1) not to disclose his or her former 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 the Commonwealth, to claim that his or her new identity is his or her only identity.
(3) It is the duty of each Commonwealth officer and former Commonwealth officer who has obtained access to information or a document relevant to the NWPP not to disclose that information or publish that document except as authorised by the Commissioner.
(4) If, under a complementary witness protection law of a State or Territory, it is lawful for a participant not to disclose his or her former identity for a purpose approved by the Commissioner, the participant is not required to disclose his or her former identity to a Commonwealth officer 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 under a complementary witness protection law of a State or Territory.
(6) In this section:
participant includes a person who:
(a) was provided with a new identity under the NWPP; and
(b) is no longer a participant but retains that identity.
17 Special commercial arrangements by Commissioner
This Act does not prevent the Commissioner from making commercial arrangements with a person under which a participant is able to obtain benefits under a contract or arrangement without revealing his or her former identity.
18 Cessation of protection and assistance
(1) Protection and assistance provided under the NWPP to a participant:
(a) must be terminated by the Commissioner if the participant requests in writing that it be terminated; or
(b) may be terminated by a Deputy Commissioner if:
(i) the participant deliberately breaches a term of the memorandum of understanding; or
(ii) the Deputy Commissioner discovers that the participant had knowingly given information to the Commissioner that is false or misleading in a material particular; or
(iii) the participant’s conduct or threatened conduct is, in the opinion of the Deputy Commissioner, likely to compromise the integrity of the NWPP; or
(iv) the circumstances that gave rise to the need for protection and assistance for the participant cease to exist; or
(v) the participant deliberately breaches an undertaking, including an undertaking to give evidence, given to the Commonwealth, a State or Territory in relation to a matter relevant to the NWPP; or
(vi) the participant refuses or fails to sign a new memorandum of understanding when required to do so under subsection 8(5); or
(vii) there is, in the opinion of the Deputy Commissioner, no reasonable justification for the participant to remain included in the NWPP;
and the Deputy Commissioner is of the opinion that, in the circumstances of the case, the protection and assistance should be terminated.
(2) If a Deputy Commissioner makes a decision under paragraph (1)(b) that protection and assistance provided under the NWPP to a participant be terminated, the Deputy Commissioner must:
(a) take reasonable steps to notify the participant of the decision; and
(b) notify the relevant approved authority of the decision.
(3) A participant who receives such a notification may, within 28 days after receiving the notice, apply in writing to the Commissioner for a review of the decision of the Deputy Commissioner.
(4) If an application is made, the Commissioner:
(a) must review the decision of the Deputy Commissioner, 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) A decision of a Deputy Commissioner under paragraph (1)(b) that protection and assistance provided under the NWPP to a participant be terminated:
(a) if:
(i) the participant’s whereabouts are not known; and
(ii) the Deputy 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 period of 28 days after those steps were commenced; or
(b) if the participant does not apply for a review of the decision in accordance with subsection (3)—takes effect at the end of the period of 28 days after the participant receives the notification; or
(c) if the participant applies for a review of the decision in accordance with subsection (3) and the Commissioner notifies the participant that he or she has reversed the decision—has no effect; or
(d) if the participant applies for a review of the decision in accordance with subsection (3) and the Commissioner notifies the participant that he or she has confirmed the decision—takes effect when the Commissioner notifies the participant of the decision on the review; or
(e) if the participant applies for a review of the decision in accordance with subsection (3) and the Commissioner notifies the participant that he or she has varied the decision—takes effect on the day specified by the Commissioner.
(6) If:
(a) protection and assistance provided under the NWPP to a participant is terminated; and
(b) the person was a participant under section 10 or 10A;
the Commissioner must notify the Secretary to the Department of Immigration and Ethnic Affairs, or an officer nominated by the Secretary, in writing of the termination.
19 Restoration of former identity
(1) If:
(a) a participant has been provided with a new identity under the NWPP; and
(b) protection and assistance under the NWPP to the participant is terminated;
a Deputy Commissioner may, if he or she considers it appropriate to do so, take such action as is necessary to restore the former participant’s former identity.
(2) The Deputy Commissioner must take reasonable steps to notify the former participant of a decision under subsection (1).
(3) If the Deputy Commissioner proposes to take action to restore the former participant’s former identity, the former participant may apply in writing to the Commissioner for a review of the decision of the Deputy Commissioner.
(4) If an application is made, the Commissioner:
(a) must review the decision of the Deputy Commissioner 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 or a Deputy Commissioner:
(a) takes action under this section to restore the former identity of a person who was a Commonwealth participant; and
(b) the Commissioner or a Deputy 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 NWPP;
the former participant must not refuse or fail to return those documents to the Commissioner within 7 days after receiving the notice.
Penalty: 10 penalty units.
(6) Subsection (5) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).
20 Provision of information to approved authorities
If:
(a) a participant has been provided with a new identity or has been relocated under the NWPP; and
(b) an approved authority or a member notifies the Commissioner that the participant is under investigation for, or has been arrested for or charged with, an offence against a law of the Commonwealth or of a State or Territory the maximum penalty for which is or includes imprisonment for a period of more than one year;
the Commissioner may:
(c) release to the approved authority or the member the new identity or new location of the participant; and
(d) provide the approved authority or the member with the criminal record of the participant and the participant’s fingerprints; and
(e) release to the approved authority or the member such other information relating to the NWPP as the Commissioner considers appropriate in the circumstances; and
(f) if the Commissioner considers it appropriate to do so in the circumstances—allow officers of the approved authority or the member to interview the Commissioner, a Deputy Commissioner, AFP employees or special members of the Australian Federal Police in relation to the participant.
21 Officers protected from suit in respect of decisions under Act
The Commissioner, delegates of the Commissioner and other persons performing functions in relation to the NWPP are not liable to any action, suit or proceedings (including criminal proceedings) in respect of an act done or omitted to be done in good faith in the exercise or purported exercise of a power conferred by this Act.
22 Offences
(1) A person must not disclose information:
(a) about the identity or location of a person who is or has been a Commonwealth participant; or
(b) that compromises the security of such a person.
Penalty: Imprisonment for 10 years.
(2) A person who is or has been a Commonwealth participant, or a person who has undergone assessment for inclusion in the NWPP as such a participant, must not disclose:
(a) the fact that he or she is or has been a participant or has undergone assessment for inclusion in the NWPP; or
(b) information as to the way in which the NWPP operates; or
(c) information about the Commissioner, a Deputy Commissioner, any AFP employee or any special member of the Australian Federal Police who is or has been involved in the NWPP; or
(d) the fact that he or she has signed a memorandum of understanding; or
(e) any details of a memorandum of understanding that he or she has signed;
unless the person has been authorised by the Commissioner to make the disclosure or the disclosure is made for the purpose of making a complaint, or providing information, to the Ombudsman under the Ombudsman Act 1976.
Penalty for an offence against this subsection: Imprisonment for 5 years.
23 Payments under NWPP not able to be confiscated
(1) The Commissioner may certify in writing that an amount held by a participant represents payments made to the participant under the NWPP.
(2) An amount so certified cannot be confiscated or restrained, and cannot be applied in payment of pecuniary penalties, under Division 3 of Part XIII of the Customs Act 1901, the Proceeds of Crime Act 1987, the Proceeds of Crime Act 2002, the Crimes (Superannuation Benefits) Act 1989 or the Australian Federal Police Act 1979.
24 Restriction on issue of Commonwealth identity documents
(1) Commonwealth identity documents must not, after the end of 12 months after the commencement of this Act, be issued for a person who is on a witness protection program being conducted by a State or Territory unless:
(a) an arrangement is in force between the Minister and the relevant State or Territory Minister relating to the issue of Commonwealth identity documents for the purposes of that program; and
(b) a complementary witness protection law is in force in the 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 Commonwealth identity documents for the purposes of such a program; and
(b) guidelines for the issue of those documents and other documents.
25 Delegation
(1) Subject to subsection (3), the Commissioner may, by writing, delegate all or any of his or her powers under this Act to a person who holds or occupies a designated position.
(2) A person who holds or occupies a designated position may exercise powers delegated to the person by the Commissioner under a complementary witness protection law.
(3) The Commissioner’s powers under sections 6, 8, 14, 16, 18, 20 and 27 and subsections 12(2) and (3) may only be delegated to a Deputy Commissioner.
26 Commissioner and members not to be required to disclose information
(1) Subject to subsection (3), the Commissioner, a Deputy Commissioner, an AFP employee or a special member of the Australian Federal Police is not to be required:
(a) to produce in a court, or before a tribunal, a Royal Commission or an approved authority, any document that has come into the custody or control of the person in the course of, or because of, the performance of functions or duties under this Act; or
(b) to divulge or communicate to or before such a body any matter or thing that has come to the notice of the person in the performance of functions or duties under this Act;
except where it is necessary to do so for the purpose of carrying the provisions of this Act into effect.
(2) Subject to subsection (3), the Commonwealth Ombudsman or a member of the staff of the Commonwealth Ombudsman is not to be required:
(a) to produce in a court, or before a tribunal, a Royal Commission or an approved authority, any document that has come into the custody or control of the person in relation to this Act; or
(b) to divulge or communicate to or before such a body any matter or thing that has come to the notice of the person in relation to this Act;
except where it is necessary to do so for the purpose of carrying the provisions of this Act into effect.
(3) If it is essential to the determination of legal proceedings under or in relation to a law of the Commonwealth that the judge or magistrate presiding over the proceedings be advised of a participant’s location and circumstances, a person referred to in subsection (1) or (2) is to disclose the relevant information to the judge or magistrate in chambers, but the person must not disclose the information if any person other than the judge or magistrate and the person is present.
(4) The judge or magistrate must not disclose any information disclosed to the judge or magistrate under subsection (3) otherwise than in accordance with this Act.
(5) Subsection (1) does not apply to information about a financial support arrangement for a participant or a former participant if the information is provided in a way that cannot identify the location, or prejudice the safety, of the participant or former participant.
27 Requirement where participant becomes a witness in criminal proceedings
(1) If:
(a) a participant is provided with a new identity under the NWPP; and
(b) the person, whether or not he or she remains a participant, retains that identity; and
(c) the person is to be a witness in a criminal proceeding under that identity; and
(d) the person has a criminal record under his or her former identity;
the person must notify the Commissioner that the person is to be a witness in the proceeding.
(2) After being notified under subsection (1), the Commissioner may take any action he or she considers appropriate in the circumstances, including disclosing to the court, the prosecutor and the accused person or the accused person’s legal representative the criminal record of the participant or former participant.
28 Identity of participant not to be disclosed in court proceedings etc.
If, in any proceedings in a court, a tribunal or a Royal Commission or other commission of inquiry, the identity of a person who is a Commonwealth 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 relate 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.
Section 10A Inclusion of persons in NWPP at the request of International Criminal Court
(1) If:
(a) the Minister receives a request from the International Criminal Court for the inclusion of a person (the nominated person) in the NWPP; and
(b) the Minister is satisfied that:
(i) the Court has provided all material that is necessary to support the request; and
(ii) it is appropriate to do so in all the circumstances; the Minister is to refer the request to the Commissioner.
(2) The Commissioner is to consider including the nominated person in the NWPP in the same way as the Commissioner would consider including another person in the NWPP.
(3) The Commissioner may, if he or she thinks it appropriate to do so, seek further information about the nominated person from the Court.
(4) If:
(a) the Commissioner decides that the nominated person is suitable for inclusion in the NWPP; and
(b) the Minister, after considering a report from the Commissioner recommending the inclusion of the person in the NWPP, has decided that it is appropriate in all the circumstances that the person be included in the NWPP; and
(c) the Commissioner has entered into an arrangement with the Court for the purpose of making services under the NWPP available to the Court; and
(d) if the person is not an Australian citizen—the nominated person has been granted a visa for entry to Australia;
the Commissioner is to include the nominated person in the NWPP.
(5)An arrangement referred to in paragraph (4)(c) must include procedures under which the Court pays the costs associated with providing protection for the nominated person and any associated persons, including:
(a) the costs of travel by those persons and the costs of associated travel by members; and
(b) any costs that will be incurred if protection and assistance under the NWPP to the nominated person is terminated; and
(c) such other costs as the Commissioner determines.
(6) In this section: International Criminal Court has the same meaning as in the International Criminal Court Act 2002.
1. States Parties shall, in accordance with the provisions of this Part and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions:
(a) The identification and whereabouts of persons or the location of items;
(b) The taking of evidence, including testimony under oath, and the production of evidence, including expert opinions and reports necessary to the Court;
(c) The questioning of any person being investigated or prosecuted;
(d) The service of documents, including judicial documents;
(e) Facilitating the voluntary appearance of persons as witnesses or experts before the Court;
(f) The temporary transfer of persons as provided in paragraph 7;
(g) The examination of places or sites, including the exhumation and examination of grave sites;
(h) The execution of searches and seizures;
(i) The provision of records and documents, including official records and documents;
(j) The protection of victims and witnesses and the preservation of evidence;
(k) The identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties; and
(l) Any other type of assistance which is not prohibited by the law of the requested State, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the Court.
2. The Court shall have the authority to provide an assurance to a witness or an expert appearing before the Court that he or she will not be prosecuted, detained or subjected to any restriction of personal freedom by the Court in respect of any act or omission that preceded the departure of that person from the requested State.
3. Where execution of a particular measure of assistance detailed in a request presented under paragraph 1, is prohibited in the requested State on the basis of an existing fundamental legal principle of general application, the requested State shall promptly consult with the Court to try to resolve the matter. In the consultations, consideration should be given to whether the assistance can be rendered in another manner or subject to conditions. If after consultations the matter cannot be resolved, the Court shall modify the request as necessary.
4. In accordance with article 72, a State Party may deny a request for assistance, in whole or in part, only if the request concerns the production of any documents or disclosure of evidence which relates to its national security.
5. Before denying a request for assistance under paragraph 1 (l), the requested State shall consider whether the assistance can be provided subject to specified conditions, or whether the assistance can be provided at a later date or in an alternative manner, provided that if the Court or the Prosecutor accepts the assistance subject to conditions, the Court or the Prosecutor shall abide by them.
6. If a request for assistance is denied, the requested State Party shall promptly inform the Court or the Prosecutor of the reasons for such denial.
(a) The Court may request the temporary transfer of a person in custody for purposes of identification or for obtaining testimony or other assistance. The person may be transferred if the following conditions are fulfilled:
(i) The person freely gives his or her informed consent to the transfer; and
(ii) The requested State agrees to the transfer, subject to such conditions as that State and the Court may agree.
(b) The person being transferred shall remain in custody. When the purposes of the transfer have been fulfilled, the Court shall return the person without delay to the requested State.
(a) The Court shall ensure the confidentiality of documents and information, except as required for the investigation and proceedings described in the request.
(b) The requested State may, when necessary, transmit documents or information to the Prosecutor on a confidential basis. The Prosecutor may then use them solely for the purpose of generating new evidence.
(c) The requested State may, on its own motion or at the request of the Prosecutor, subsequently consent to the disclosure of such documents or information. They may then be used as evidence pursuant to the provisions of Parts 5 and 6 and in accordance with the Rules of Procedure and Evidence.
(i) In the event that a State Party receives competing requests, other than for surrender or extradition, from the Court and from another State pursuant to an international obligation, the State Party shall endeavour, in consultation with the Court and the other State, to meet both requests, if necessary by postponing or attaching conditions to one or the other request.
(ii) Failing that, competing requests shall be resolved in accordance with the principles established in article 90.
(b) Where, however, the request from the Court concerns information, property or persons which are subject to the control of a third State or an international organization by virtue of an international agreement, the requested States shall so inform the Court and the Court shall direct its request to the third State or international organization.
(a) The Court may, upon request, cooperate with and provide assistance to a State Party conducting an investigation into or trial in respect of conduct which constitutes a crime within the jurisdiction of the Court or which constitutes a serious crime under the national law of the requesting State.
(b)
(i) The assistance provided under subparagraph (a) shall include, inter alia:
a. The transmission of statements, documents or other types of evidence obtained in the course of an investigation or a trial conducted by the Court; and
b. The questioning of any person detained by order of the Court;
(ii) In the case of assistance under subparagraph (b) (i) a:
a. If the documents or other types of evidence have been obtained with the assistance of a State, such transmission shall require the consent of that State;
b. If the statements, documents or other types of evidence have been provided by a witness or expert, such transmission shall be subject to the provisions of article 68.
(c) The Court may, under the conditions set out in this paragraph, grant a request for assistance under this paragraph from a State which is not a Party to this Statute.
1. A request for other forms of assistance referred to in article 93 shall be made in writing. In urgent cases, a request may be made by any medium capable of delivering a written record, provided that the request shall be confirmed through the channel provided for in article 87, paragraph 1 (a).
2. The request shall, as applicable, contain or be supported by the following:
(a) A concise statement of the purpose of the request and the assistance sought, including the legal basis and the grounds for the request;
(b) As much detailed information as possible about the location or identification of any person or place that must be found or identified in order for the assistance sought to be provided;
(c) A concise statement of the essential facts underlying the request;
(d) The reasons for and details of any procedure or requirement to be followed;
(e) Such information as may be required under the law of the requested State in order to execute the request; and
(f) Any other information relevant in order for the assistance sought to be provided.
3. Upon the request of the Court, a State Party shall consult with the Court, either generally or with respect to a specific matter, regarding any requirements under its national law that may apply under paragraph 2 (e). During the consultations, the State Party shall advise the Court of the specific requirements of its national law.
4. The provisions of this article shall, where applicable, also apply in respect of a request for assistance made to the Court.