House of Representatives

Explanatory Memorandum

Circulated by authority of the Attorney-General, the Honourable Robert McClelland MP

Schedule 3 - National Witness Protection Program

GENERAL OUTLINE

The Witness Protection Act 1994 provides a statutory basis for the NWPP. The NWPP provides protection and assistance to people who are assessed as being in danger because they have given, or have agreed to give, evidence or a statement on behalf of the Crown in criminal or certain other proceedings, or because of their relationship to such persons. For example, if a person gives evidence in a serious or high profile criminal trial, that person's security, and that of their family, may be at risk as a result.

The NWPP is maintained by the Commissioner of the AFP, who has responsibility for deciding whether to include a witness in the NWPP or provide protection and assistance to a person under the NWPP. The types of protection and assistance that may be provided under the NWPP include, but are not limited to:

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providing a person with a new identity

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relocating a person

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assistance with accommodation, and

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assistance with obtaining employment and access to education under a new identity or in a new location.

The amendments in this Schedule will provide increased protection and security to: people included in, or provided with assistance under, the NWPP; members of the AFP who serve in the Witness Protection Unit; and other AFP employees involved in the operation of the NWPP. The amendments will make the following key changes to the Act.

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Clarifying the application of the Act to witnesses involved in State and Territory matters.

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Updating the concept of identity.

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Extending the availability of protection under the NWPP to former participants and related persons.

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Updating and extending the scope of non-disclosure offences.

Several concepts, and a range of terminology, are relevant to understanding the current operation of the NWPP, and the affect of the amendments made by this Schedule.

Scope of the term 'participant'

This Schedule will amend the Act so that protection and assistance can be provided to former as well as current participants where such action is appropriate. To give effect to this change, the new definition of 'participant' (someone included in the NWPP) will include a former participant (someone who has ceased to be included in the NWPP) unless the contrary intention appears. As a result, most references to a participant will now include both current and former participants.

As outlined below, the amendments will also allow assistance to be extended to someone whose relationship with a former participant is such that the Commissioner is satisfied that it is appropriate to provide that assistance (under new subsection 13(5) inserted by Item 22).

New subsection 13(6) (also inserted by Item 22) will provide that if the Commissioner extends assistance or protection to someone other than a former participant under new subsection 13(5), the Act applies to that person as if they were a former participant. Therefore, where a reference in the Act to a participant includes a former participant, it will also include such a person, unless otherwise specified.

Clarifying the application of the Act to witnesses involved in State and Territory matters

While the NWPP was established primarily for witnesses in Commonwealth matters, section 6 of the Act provides the Commissioner with authority to include witnesses in State or Territory proceedings in the NWPP. However, there are parts of the Act that refer to a 'Commonwealth participant', and the definition of that term does not include State or Territory witnesses. Commonwealth participant is defined at section 3 to mean a participant: in relation to an offence against a law of the Commonwealth; in relation to a Royal Commission or another commission or inquiry under a law of the Commonwealth; in relation to an inquiry instituted by Parliament; or under section 10 or 10A. Sections 10 and 10A allow the Commissioner to include people in the NWPP at the request of a foreign law enforcement agency or the International Criminal Court respectively. This means that potential gaps exist in the Act in relation to protection of State and Territory witnesses included in the NWPP, and their obligations under the NWPP.

The amendments will insert definitions of State participant and Territory participant into the Act (Items 10 and 11 respectively). The Commonwealth's legislative power differs with respect to Commonwealth and Territory participants on the one hand, and State participants on the other. As a result, some provisions of the Act need to distinguish between these different classes of participant, and may include additional elements.

Updating the concept of identity under the Act

Currently, the Act distinguishes only between a person's 'former identity' and their 'new identity'. Such a distinction is based on the assumption that a person will only be provided with one new identity under the NWPP, and that their former identity is equivalent to their original identity. However, while they would only ever be using one identity at a particular point in time, NWPP participants may be provided with more than one identity in addition to their original identity. This can happen if the first identity provided to the person under the NWPP is compromised in some way. For example, if a person was relocated to a new location under a new identity, but was subsequently recognised by someone who knew the person before they were included in the NWPP, that person may need to be provided with a further new identity.

The amendments will insert definitions of 'original identity', 'current NWPP identity' and 'former NWPP identity' so that these three classes of identity can be distinguished for the purposes of the Act. Original identity will mean the identity of a person at the time immediately before that person was first provided with an identity under the NWPP. Current NWPP identity will mean an identity that a participant in the NWPP was provided under the NWPP and that the participant is actually using at that time. Former NWPP identity will mean an identity that was provided to a participant in the NWPP that is no longer being used by the participant. These definitions are explained in more detail at Items 2, 3 and 7 below. Amendments will be made throughout the Act to ensure that a participant's former identity is protected in the same way as their original identity.

Extending protection under the NWPP to former participants and related persons

Under the current provisions of the Act, once participants have left the NWPP, they are unable to obtain assistance without undergoing a formal assessment to rejoin the NWPP. This delay could endanger former participants. New provisions inserted by Item 22 will allow the Commissioner to provide assistance to former participants where it is necessary and reasonable for their protection, without formally re-including them in the NWPP. These provisions will also allow assistance to be extended to someone whose relationship with a former participant is such that the Commissioner is satisfied that it is appropriate to provide that assistance. This could include relatives, friends or other associates of the former participant, and would include people the former participant has met since leaving the program.

Updating and extending the scope of non-disclosure offences

Currently, section 22 of the Act makes it an offence to disclose information about the identity or location of a person who is or has been a Commonwealth participant or information that compromises the security of such a person. This offence does not distinguish between instances where the person disclosing the information is reckless as to whether there is a risk that the disclosure will compromise the security of an individual and those not involving this aspect of potential harm. Section 22 also makes it an offence for 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 to disclose certain information about the NWPP. In both cases, the offences apply only in relation to Commonwealth participants.

The amendments (Item 52) will repeal the existing offences at section 22 and replace them with three separate sets of offences, which will apply to disclosure of information about:

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Commonwealth or Territory participants, and people undergoing assessment for inclusion in the NWPP as such participants

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State participants, and people undergoing assessment for inclusion in the NWPP as such participants, and

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the NWPP.

A higher maximum penalty will apply to offences where the person committing the offence is reckless as to whether there is a risk that the disclosure of the information will compromise the security of an individual involved in the NWPP.

One of the purposes of Item 52 is to extend those offences to apply also to State and Territory participants. That item will also extend the scope of the non-disclosure offences in the Act to include disclosures relating to people undergoing assessment for inclusion in the NWPP. This provides an important protection for witnesses who may be in a particularly vulnerable position as they have been identified as potentially being in danger but have not yet been included in the NWPP.

Witness Protection Act 1994

Item 1

This item will amend the definition of complementary witness protection law in section 3 to remove the requirement for such laws to be declared by notice in the Gazette, and instead provides that such laws are those State or Territory laws that are declared under new section 3AA of the Act (inserted by Item 13).

Item 2

Item 2 will insert a definition of 'current NWPP identity' in section 3. While a person would only ever be using one identity at a particular point in time, NWPP participants may be provided with more than one identity in addition to their original identity. Current NWPP identity will mean an identity that a participant in the NWPP was provided under the NWPP and that is being used by the participant at that time. For example, if a person entered the NWPP with the identity of 'Mr X' and was given a new identity of 'Mr Y' under the NWPP, his current NWPP identity would be 'Mr Y'. If the person's identity as 'Mr Y' was compromised in some way and he was subsequently required to adopt a further new identity of 'Mr Z', this would become his current NWPP identity.

Item 3

Item 3 will insert a definition of 'former NWPP identity' in section 3. While a person would only ever be using one identity at a particular point in time, NWPP participants may be provided with more than one identity in addition to their original identity. Former NWPP identity will mean an identity that was provided to a participant, but that is not being used by the participant at the time. For example, if 'Mr X' was given the new identity of 'Mr Y' under the NWPP and was then required to adopt the further new identity of 'Mr Z', his former NWPP identity would be 'Mr Y'. This definition ensures that all identities previously held by the participant, and not just the participant's original identity, will be protected under the Act.

Item 4

The Bill will amend the Act so that protection and assistance can be provided to former as well as current participants where such action is appropriate (see Item 22). To give effect to this change, the new definition of 'participant' will include former participants in the NWPP unless the contrary intention appears. Item 4 will insert a definition of 'former participant' in section 3. Former participant will mean a person who was previously included in the NWPP but is no longer included. This definition is required so that in instances where a provision is to apply only to current or only to former participants, that can be made clear.

Item 5

Item 5 will insert a definition of 'Immigration Secretary' in section 3. Immigration Secretary will mean the Secretary of the Department administered by the Minister who administers the Migration Act 1958 . This definition is necessary for provisions in the Act (as amended by Items 22 and 44) which deal with the notification of the Immigration Secretary where certain actions are taken in relation to foreign nationals included in the NWPP at the request of foreign law enforcement agencies and persons included in the NWPP at the request of the International Criminal Court under sections 10 and 10A.

Item 6

Item 6 will insert a definition of 'information' in section 3. Information , where it relates to the identity of a person, will include information about a person's appearance, voice quality or accent, mannerisms, address or location, particular skills and qualifications and personal history. The definition will clarify but not limit what is meant by information in relation to the identity of a participant. This amendment will make it clear that the concept of identity under the Act encompasses not just a name but all aspects of an identity.

Item 7

Item 7 will insert a definition of 'original identity' in section 3. Original identity will mean the identity of a person at the time immediately before he or she was first provided with an identity under the NWPP. If a person has lawfully changed their name since birth (for example, due to marriage, divorce or via a legal name change), his or her original identity will be the latest identity he or she had before first being provided with an identity under the NWPP. For example, a person could be born 'Ms Y' and change her name to 'Mrs X' after marriage. If that person was then provided with a new identity under the NWPP, her original identity would be 'Mrs X'.

Item 8

Item 8 will amend the definition of 'participant' in section 3. Participant will now be defined to mean a person included in the NWPP, and will include a former participant, except where a particular provision specifies otherwise. This Schedule will amend the Act so that protection and assistance can be provided to former as well as current participants where it is appropriate to do so. Amending the definition of participant will remove the need to refer separately to current participants and former participants in each provision that will apply to both.

A reference in the Act to a participant includes:

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a Commonwealth participant (including a former participant unless otherwise specified)

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a Territory participant (including a former participant unless otherwise specified), and

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a State participant (including a former participant unless otherwise specified).

Item 9

New section 3AB (inserted by Item 13) will define what is meant by 'State offence that has a federal aspect' for the purposes of the Act. Item 9 will insert a cross-reference to section 3AB in section 3, which contains definitions that apply generally throughout the Act.

Items 10 and 11

Items 10 and 11 will insert definitions of 'State participant' and 'Territory participant' respectively into section 3. While the NWPP was established primarily for witnesses in Commonwealth matters, section 6 of the Act provides the Commissioner with authority to include witnesses in State or Territory proceedings in the NWPP. The Commonwealth's legislative power differs with respect to Commonwealth and Territory participants on the one hand, and State participants on the other. As a result, some provisions of the Act distinguish between these different classes of participant (for example, the offence provisions at new sections 22 and 22A, inserted by Item 52), and may include additional elements.

State participant will mean a participant included in the NWPP in relation to an offence against a law of a State that has a federal aspect, a law of a State that does not have a federal aspect or a commission of inquiry under a law of a State.

Territory participant will mean a participant in relation to an offence against a law of a Territory or a commission or inquiry under a law of a Territory.

Item 12

Item 12 makes a technical amendment to clarify the scope of the definition of 'witness' for the purposes of the Act. Witness is currently defined in section 3 to include several classes of people at paragraphs (a), (b), (c) and (d). The scope of paragraph (e) as currently drafted is ambiguous due to a reference to 'such a person', which could apply either to a person referred to in paragraph (d) only, or to a person referred to in any of the preceding paragraphs. Paragraph (e) as amended will clearly extend the definition of witness to include people who, because of their relationship to, or association with, a person referred to in paragraph (a), (b), (c) and (d), may require protection or other assistance under the NWPP.

Item 13

Item 13 will insert definitions of 'complementary witness protection law' and 'State offence that has a federal aspect' for the purposes of the Act.

The current definition of complementary witness protection law in section 3 of the Act provides that the Minister may declare, by notice published in the Commonwealth of Australia Gazette , that a law of a State or Territory that makes provision for the protection of witnesses is a 'complementary witness protection law'. The effect of such a declaration is to allow the Commissioner to arrange or provide protection and other assistance for witnesses under the complementary laws. For example, it allows the AFP to apply to the court of a State with a declared complementary witness protection law for the issue of State identity documents for a witness's new identity.

Declarations under section 3 have been made in relation to all States and Territories. The declarations made under the existing section are not 'legislative instruments' for the purposes of the Legislative Instruments Act 2003 . Under the Legislative Instruments Act, legislative instruments must be registered on the Federal Register of Legislative Instruments (FRLI) in order for them to be valid and enforceable by or against the Commonwealth, or by or against another person or body. As the declarations made under the Act are not legislative instruments, they are not registered on FRLI. Instead they appear only in the Gazette.

FRLI is designed to improve public access to legislative instruments and establish mechanisms to ensure that legislative instruments are periodically reviewed and, if they no longer have a continuing purpose, repealed. To facilitate straightforward public access to declarations made under the Act, this item will insert new section 3AA into the Act. Section 3AA will allow the Minister to declare that a State or Territory law is a 'complementary witness protection law' by legislative instrument. As a consequence, paragraph 3(b) of the definition of complementary witness protection law will be amended by Item 1 to remove the requirement for such laws to be declared by notice in the Gazette, and instead provide that such laws are those State or Territory laws that are declared under new section 3AA of the Act (inserted by this item).

Item 10 will insert a definition of State participant into section 3 that will include a participant included in the NWPP in relation to an offence against a law of a State that has a federal aspect. To support that definition, this item will insert new section 3AB, which will provide a definition of 'State offence that has a federal aspect' for the purposes of the Act. State offences with a federal aspect will be defined by reference to offences that would be taken to be such under the Australian Federal Police Act 1979 or the Australian Crime Commission Act 2002 .

Item 14

Section 8 contains provisions relating to the process for including a witness in the NWPP. Item 8 will amend the definition of participant in section 3 to include a former participant unless the contrary appears. Item 4 will insert a definition of former participant into section 3 to mean a person who has ceased to be included in the NWPP. However, in section 8 the only references to a participant concern situations in which a witness who was included in the NWPP when he or she was under 18 years of age and remains in the NWPP until after they turn 18 may be required to sign a new memorandum of understanding. These references could not logically include former participants. For this reason, this item will provide that references to participants in section 8 do not include former participants.

Item 15

To be included in the NWPP, a witness must enter into a memorandum of understanding with the Commissioner. Section 9 sets out conditions to apply to a memorandum of understanding between the Commissioner and a participant. Item 8 will amend the definition of participant in section 3 to include a former participant unless the contrary appears. Item 4 will insert a definition of former participant into section 3 to mean a person who has ceased to be included in the NWPP. However, a former participant would not be required to enter into a memorandum of understanding. For this reason, this item will provide that references to participants in section 9 do not include former participants.

This item will also provide that despite references to participant in section 9 not including former participants, obligations under a memorandum of understanding that continue to apply after a participant has left the NWPP are not affected.

Items 16 - 19

Section 11 requires the Commissioner to maintain a Register of NWPP participants, and sets out the details to be included in that Register.

Item 16

Item 16 will amend paragraph 11(3)(b) to clarify that the Commissioner must include in the Register the names for each new identity a participant has been provided under the NWPP. Though only one identity would be in use at a particular point in time, NWPP participants may be provided with more than one identity in addition to their original identity. For instance, if a participant's security under an identity provided under the NWPP is compromised, they may be provided with another new identity. This amendment is a consequence of Items 2 and 3 which will insert new definitions of current NWPP identity and former NWPP identity into section 3.

Item 17

Subsection 11(3) sets out details the Commissioner is required to include in a Register of NWPP participants. The new definition of participant in section 3 (inserted by Item 8) will expressly include former participants unless the contrary intention appears. Former participant will be defined in section 3 (inserted by Item 4) to mean a person who has ceased to be included in the NWPP. As paragraph 11(3)(e) currently refers to a person ceasing to be a participant, Item 17 makes a technical amendment to that paragraph to accommodate the new definition of participant. Item 17 makes no substantive change to the information that must be recorded on the Register by the Commissioner under section 11.

Item 18

Subsection 11(5) sets out information the Commissioner is required to keep in conjunction with a Register of NWPP participants. Included in that list are documents returned by a participant to the Commissioner when a participant's original identity or a former NWPP is being restored under section 19. New subsections will be inserted at section 19 by Item 49, requiring an update to a cross-reference at subsection 11(5). Item 18 will correct and update the existing cross-reference to section 19, which is to subsection 19(2), but should have been to 19(5). The updated cross-reference will be to subsection 19(6).

Item 19

A definition of former participant will be inserted into section 3 by Item 4 to mean a person who has ceased to be included in the NWPP. Item 8 will amend the definition of participant in section 3 to include a former participant, unless the contrary intention appears.

New subsection 13(5) (inserted by Item 22) will allow the Commissioner to provide assistance to a former participant or any other person whose relationship with a former participant is such that the Commissioner is satisfied that it is appropriate to take those actions.

New subsection 13(6) (also inserted by Item 22) will provide that if the Commissioner extends assistance or protection to someone other than a former participant under new subsection 13(5), the Act applies to that person as if they were a former participant. This will mean that unless otherwise specified, references to a former participant will also include such a person.

This item will insert new subsection 11(6) to clarify that in section 11, references to 'participant' or 'former participant' do not include a person who is a former participant only because of the operation of subsection 13(6). That is, they do not apply to a person, except for a former participant, to whom the Commissioner has provided assistance under new subsection 13(5).

Items 20 - 22

Section 13 provides that the Commissioner may take actions that he or she considers necessary and reasonable to protect a 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.

Item 20

In the list of actions at subsection 13(2), paragraph 13(2)(b) concerns permitting a person who holds a designated position to use an assumed name in carrying out their duties in relation to the NWPP and carry documentation supporting the assumed name. 'Designated person' is defined at section 3, and includes the Commissioner, a Deputy Commissioner and certain AFP employees and special members of the Australian Federal Police whose duties relate to the NWPP.

Part 1AC of the Crimes Act makes provision for the acquisition and use of assumed identities by officers of certain Commonwealth agencies. Item 20 will repeal existing paragraph 13(2)(b) and replace it with a new paragraph to replace references to using an assumed name with a reference to acquiring and using assumed identities in accordance with Part 1AC of the Crimes Act.

Item 21

Subsection 13(3) prohibits the Commissioner from obtaining documentation for a witness that represents the witness as having qualifications he or she does not have or as being entitled to benefits to which the witness would not be entitled if he or she were not included in the NWPP.

Item 21 will amend paragraph 13(3)(b) to extend it to witnesses who have not yet been included in the NWPP. This amendment will ensure the same prohibition applies to both participants and witnesses being assessed for inclusion in the NWPP. As the Commissioner may take actions under section 13 to protect a witness undergoing assessment, this amendment brings the application of paragraph 13(3)(b) into line with the rest of that section.

Item 22

The operation of the current definitions in the Act relevant to section 13 precludes assistance from being provided to persons who have left the NWPP.

There can be circumstances, however, where a witness requires further protection or assistance after leaving the NWPP. For example, a former participant may need to be relocated if he or she is recognised by someone who was aware of his or her original identity. Under the current provisions of the Act, once participants have left the NWPP, they are unable to obtain assistance without undergoing a formal assessment to rejoin the NWPP. This delay could endanger former participants. Item 22 will insert new subsection 13(5) to enable the Commissioner to provide assistance to former participants where it is necessary and reasonable for their protection. This amendment will also make it easier for former participants to access certain documents relating to a NWPP identity. For example, if a former participant needs to replace a lost identity document, they would not need to be re-included in the NWPP to do so.

A definition of former participant will be inserted into section 3 by Item 4 to mean a person who has ceased to be included in the NWPP. Item 8 will amend the definition of participant in section 3 to include a former participant, unless the contrary intention appears. However, because the protection and assistance under section 13 is available to both current participants and witnesses undergoing assessment for inclusion in the NWPP who are not yet participants, it is not appropriate to rely on the expanded definition of participant in order to extend assistance to former participants. Accordingly, the definition of participant, as inserted by Item 8, will not apply to section 13. Instead, the amendments made by this item are necessary to extend the application of section 13 to former participants.

New subsection 13(5) will also allow assistance to be extended to someone whose relationship with a former participant is such that the Commissioner is satisfied that it is appropriate to provide that assistance, as if that person were a witness included in the NWPP. This could include relatives, friends or other associates of the former participant, and would include people the former participant has met since leaving the program. For example, if a former participant decides to marry, their spouse may at some stage require protection and assistance as a result of their relationship with the former participant. This is consistent with the current operation of the Act which, through the definition of witness in section 3, extends assistance and protection to people who, because of their relationship to, or association with, a witness as otherwise described in that definition (eg current participants), may require protection or other assistance under the NWPP.

In the case of both former participants and others to whom new subsection 13(5) applies, the Commissioner may only provide assistance if he or she considers it is necessary and reasonable for the person's protection and he or she has assessed the suitability of providing the assistance. This will ensure that such assistance is only provided in appropriate circumstances.

Item 22 will also insert new subsection 13(6), which provides that if the Commissioner extends assistance or protection to someone other than a former participant under new subsection 13(5), the Act applies to that person as if they were a former participant. This amendment is necessary to ensure that people given assistance or protection under new subsection 13(5) are afforded the same rights and are subject to the same obligations as others who receive assistance under the NWPP.

Item 22 will also insert new subsection 13(7) which will require the Commissioner to give the Immigration Secretary written notice when he or she first takes action under subsection 13(5) in respect of a former participant who was a participant under section 10 or 10A of the Act. Section 10 allows the Commissioner to include a foreign national in the NWPP at the request of a foreign law enforcement agency. Section 10A allows the Commissioner to include a person in the NWPP at the request of the International Criminal Court. Under current section 18, the Commissioner must notify the Immigration Secretary if a decision is made under that section to terminate assistance to a person included in the NWPP under section 10 or 10A. It is consistent to impose a similar requirement where a decision is made under subsection 13(5) to reinstate some form of assistance to such a person. A definition of Immigration Secretary will be inserted into section 3 by Item 5.

Items 23 - 24

Items 23 and 24 make technical amendments that are necessary because of the changes that will be made to definitions in section 3 by Items 2, 3 and 7. These changes will differentiate between a participant's original identity, current NWPP identity and former NWPP identity.

Item 23 will replace the reference to 'identity' in paragraph 14(b)(ii) with a reference to 'original identity'.

Item 24 will replace the reference to 'former identity' at subsection 15(5) with a reference to 'original identity' or a 'former NWPP identity'.

Items 25 - 30

Section 16 currently provides that a participant given a new identity under the NWPP who would otherwise be required to disclose his or her former identity by or under a law of the Commonwealth is not required to do so if he or she has permission from the Commissioner, in the prescribed form, not to disclose his or her former identity for that particular purpose.

Items 25 to 30 will replace references throughout section 16 to a participant's former identity with references to a participant's 'original identity' or a 'former NWPP identity', and a reference to a participant's new identity with a reference to a participant's 'current NWPP identity'. These amendments are required because the proposed changes to the definitions in section 3 of the Act made by Items 2, 3 and 7 will differentiate between a participant's original identity, current NWPP identity and former NWPP identity.

Items 25 to 28 and 30 will clarify that current references to former identity will now apply to the identity the participant had at the time immediately before he or she was first provided with an identity under the NWPP and any identity provided to the participant under the NWPP that the participant is not currently using.

Item 29 will clarify that the current reference to new identity will now apply only to an identity provided to a participant under the NWPP that is being used by the participant at that time.

Item 31

Item 31 will repeal current subsection 16(6), which states that, for the purposes of section 16, a 'participant' includes a person who has been given a new identity under the NWPP but is no longer a participant. Subsection 16(6) will no longer be necessary because the amended definition of participant in section 3 (inserted by Item 8) will encompass a former participant unless the contrary intention appears. A definition of former participant will be inserted into section 3 by Item 4 to mean a person who has ceased to be included in the NWPP. References in section 16 to participants will therefore automatically apply to former participants.

Item 32

Item 32 will replace the reference to 'former identity' at section 17 with a reference to 'original identity' or any 'former NWPP identity'. This amendment is required because proposed new definitions in section 3 (inserted by Items 2, 3 and 7) will differentiate between a participant's original identity, current NWPP identity and former NWPP identity. This item will clarify that section 17 applies with respect to the participant's original identity (that which the person had at the time immediately before he or she was first provided with an identity under the NWPP) and any identity provided to the participant under the NWPP that the participant is not currently using.

Items 33 - 44

Section 18 is about decisions related to, and the process for, terminating assistance provided to a person under the NWPP. Currently, section 18 conflates termination of protection and assistance under the NWPP with termination of a participant's inclusion in the NWPP. New subsection 13(5), inserted by Item 22, will provide that the Commissioner may provide assistance to a former participant or any other person whose relationship with a former participant is such that the Commissioner is satisfied that it is appropriate to take those actions. That amendment requires separate provisions to be in place concerning terminating a participant's inclusion in the NWPP and terminating assistance provided to a person under subsection 13(5).

Items 33-36 will amend subsections 18(1) and 18(2) so that they apply only to circumstances where the Commissioner must or may terminate a participant's inclusion in the NWPP.

Item 37 will insert new subsection 18(2A) to apply to circumstances where the Commissioner must or may terminate assistance provided to a person (including a former participant) under new subsection 13(5). Like subsection 18(1), subsection 18(2A) will provide that assistance must be terminated if a person requests in writing that it be terminated. It will also list circumstances where assistance may be terminated by the Commissioner, based on the circumstances listed for the similar existing provision at subsection 18(1) that could also apply to people provided with assistance under new subsection 13(5). These include that the person's conduct is likely to compromise the integrity of the NWPP and that the situation that gave rise to the need for protection and assistance for the person no longer exists. As with decisions under subsection 18(1)(b), there will be an obligation for the Deputy Commissioner to take reasonable steps to notify the person to whom assistance is being terminated under new paragraph 18(2A)(b) of the decision. This requirement will be included in new subsection 18(2B), also inserted by Item 37.

Existing subsections 18(3) to 18(6) set out the process for review of decisions made under paragraph 18(1)(b), when such decisions take effect and a requirement for the Commissioner to notify the Immigration Secretary of a decision under that paragraph in relation to a participant included under section 10 or 10A of the Act. Items 38-44 will amend these subsections so that they apply in the same way to decisions under new paragraph 18(2A)(b). These amendments include amending references to 'participant' with references to 'person', as references in section 18 to a 'participant' will not include a former participant. See Item 45 below.

Item 45

Section 18 as amended by Items 33 to 44 will outline when the Commissioner must or may terminate a participant's inclusion in the NWPP or assistance provided to a person under new subsection 13(5), and the process to be followed in order to take such action. Participant will be defined at section 3, by Item 8, to include a former participant unless the contrary appears. A definition of former participant will be inserted into section 3 by Item 4 to mean a person who has ceased to be included in the NWPP. However, in section 18 the only references to a participant relate to the termination of a participant's inclusion in the NWPP. These references could not logically apply to former participants. For this reason, Item 45 will provide that references to participants in section 8 do not include former participants.

Item 46

Section 19 allows a Deputy Commissioner to restore a person's previous identity, and outlines the process to be followed in order to take such action. Subsection 19(1) currently allows the Commissioner to restore a former identity of a former participant, but not a former identity of a (current) participant. There are instances where it may be appropriate to restore a former identity of a witness who is still included in the NWPP. Item 46 will repeal existing subsection 19(1) and replace it with a new subsection to allow a Deputy Commissioner the discretion to restore a previous identity in such circumstances without first having to terminate the participant's inclusion in the NWPP. As the new definition of participant at section 3 (inserted by Item 8) will expressly include former participants unless the contrary intention appears, the new subsection will cover both current and former participants. A definition of former participant will be inserted into section 3 by Item 4 to mean a person who has ceased to be included in the NWPP.

Proposed changes to the definitions in section 3 made by Items 2, 3 and 5 will differentiate between a participant's original identity, current NWPP identity and former NWPP identity. New subsection 19(1) will be worded consistently with those amendments.

This item will ensure that where it is proposed to terminate a participant's inclusion in the NWPP, the participant's original or former NWPP identity may be restored prior to assistance under the NWPP being terminated. It will also provide flexibility for a Deputy Commissioner to restore a participant's original or former NWPP identity where it not proposed to terminate a participant's inclusion if circumstances arise where it is appropriate to do so.

While in most cases a Deputy Commissioner acting under subsection 19(1) would be restoring a participant's original identity (that which the person had at the time immediately before he or she was first provided with an identity under the NWPP), the new subsection will provide flexibility by allowing restoration of either a participant's original identity or any former NWPP identity of the participant. Former NWPP identity will be defined at section 3 by Item 3 to mean any identity provided to the participant under the NWPP that the participant is not currently using.

Item 47

Item 47 will remove the reference to 'former' in subsection 19(2). This is a technical amendment required because:

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Item 46 will repeal and replace subsection 19(1) so that section 19 applies to current as well as former participants in the NWPP, and

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the proposed new section 3 definition of participant (inserted by Item 8) expressly includes former participants unless the contrary intention appears.

Item 48

Item 48 will replace references to a former participant with references to a participant and a reference to a participant's 'former identity' with a reference to the 'original identity' or any 'former NWPP identity' of the participant in subsection 19(3). This is a technical amendment required for the following reasons.

•

Item 46 will repeal and replace subsection 19(1) so that section 19 applies to current as well as former participants in the NWPP.

•

The proposed new section 3 definition of participant (inserted by Item 8) expressly includes former participants unless the contrary intention appears.

•

Proposed changes to the definitions in section 3 made by Items 2, 3 and 7 will differentiate between a participant's original identity, current NWPP identity and former NWPP identity . This item will clarify that the current reference to former identity at subsection 19(3) will now encompass both the participant's original identity (that which the person had at the time immediately before he or she was first provided with an identity under the NWPP) and any identity provided to the participant under the NWPP that the participant is not currently using.

Item 49

Proposed changes to the definitions in section 3 made by Items 2, 3 and 7 will differentiate between a participant's original identity, current NWPP identity and former NWPP identity . Items 46 to 48 will amend section 19 so that it will apply to current as well as former participants and that in each case, either a person's original identity or a former NWPP identity may be restored. The new subsections to be inserted by Item 49 are worded consistently with those amendments.

Section 19 as amended by Items 46 to 48 will allow a Deputy Commissioner to restore a person's original identity or a former NWPP identity and outlines the process to be followed where such action is to be taken. Under existing subsection 19(5) it is an offence to refuse or fail to return documents in response to a notice issued under that subsection as a result of action taken under section 19. Existing subsection 19(6) provides that the offence does not apply if the person has a reasonable excuse.

Item 49 will repeal existing subsections 19(5) and 19(6) and insert three new subsections that will set out separately:

•

that if the Commissioner or a Deputy Commissioner takes action under section 19, he or she may give a notice to the participant concerned (new subsection 19(5))

•

that the notice must be in writing, and what the notice must require of the participant (new subsection 19(6)), and

•

the offence that applies if a person is given such a notice and refuses or fails to comply with the notice (new subsection 19(7)).

•

notice under new subsection 19(6) must require the participant to return to the Commissioner all documents provided to him or her that relate to their current NWPP identity or any former NWPP identity that is not being restored, within 10 days of the notice being given. The purposes of the notice are to ensure that a person does not retain documentation relating to an identity they will no longer be using and prevent illegitimate use of such documents.

Under new subsection 19(7) it will be an offence if a person is given a notice requiring them to return documents to the Commissioner under subsection 19(6) and the person refuses or fails to comply with the notice. The offence will be punishable by a maximum penalty of ten penalty units. This is the same penalty that applies to the offence at existing subsection 19(5).

Section 5.6 of the Criminal Code will apply automatic fault elements to the physical elements of the offence. To establish this offence, the prosecution will need to prove beyond reasonable doubt that the person:

•

was reckless as to the circumstance that he or she had been given a notice under subsection 19(6), and

•

intentionally refused or failed to comply with the notice.

Section 5.4 of the Criminal Code provides that a person is reckless with respect to a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

The defence of reasonable excuse that is available for the current offence will not be available for the revised offence at new subsection 19(7). This defence is open-ended and creates uncertainty for the prosecution as to what defence might be raised. Exceptions to criminal responsibility thought to be caught by the defence of reasonable excuse are generally covered by the general defences in Part 2.3 of the Criminal Code, which include mistake or ignorance of fact and sudden or extraordinary emergency. The offence at new subsection 19(7) will rely on the general defences available under the Criminal Code.

Item 50

Section 20 applies if a participant has been provided with a new identity or has been relocated under the NWPP, and is later under investigation for, or has been arrested for or charged with an offence that has a maximum penalty of more than one year. If an approved authority , as defined at section 3 of the Act, or a member or special member of the Australian Federal Police, notifies the Commissioner of the investigation, arrest or charge, the Commissioner may take certain actions. These actions include, at current paragraph 20(c), releasing the new identity or new location of the participant to the approved authority or member.

Item 50 will amend paragraph 20(c) to refer instead to the participant's current NWPP identity or current location. Current NWPP identity will be defined at section 3 (by Item 2) to mean an identity that a participant in the NWPP was provided under the NWPP and that the participant is actually using at that time. This item will clarify that section 20 refers to the identity currently being used by a participant or the location at which the participant is located at the time.

Item 51

Section 21 protects officers involved in the operation of the NWPP from liability in relation to any action, suit or proceedings in relation to something done in good faith in the exercise or purported exercise of a power conferred by the Act. Item 51 will amend section 21 to clarify that this protection extends also to the performance or purported performance of a function conferred or a duty imposed by the Act. This will ensure that officers involved in the operation of the NWPP are provided adequate protection, as not all actions taken under the Act may be construed to be exercises of power.

Item 52

Item 52 will repeal the existing non-disclosure offences at section 22 and replace them with three separate sets of offences, which will apply to disclosure of information about:

•

Commonwealth or Territory participants, and people undergoing assessment for inclusion in the NWPP as such participants (new section 22)

•

State participants, and people undergoing assessment for inclusion in the NWPP as such participants (new section 22A), and

•

the NWPP (new section 22B).

These offences, and the penalties attached, are designed to protect the safety and welfare of NWPP participants, witnesses that are undergoing assessment for inclusion in the NWPP as participants and officers involved in administering the NWPP, as well as the effective operation of the NWPP.

Section 6 provides the Commissioner with authority to include witnesses in State or Territory proceedings in the NWPP. However, the offences currently at section 22 apply only to Commonwealth participants. One of the purposes of Item 52 is to extend those offences to apply also to State and Territory participants. This will ensure that information about the original identity or a former NWPP identity of a participant, or information that could reveal that the person is a participant, is appropriately protected.

Offences relating to disclosure of information about participants or people undergoing assessment for inclusion as participants will be separated into offences relating to Commonwealth or Territory participants and offences relating to State participants. This is because the Commonwealth's legislative power with respect to these classes of participant differs.

Item 52 will also extend the scope of the non-disclosure offences to include disclosures relating to people undergoing assessment for inclusion in the NWPP. This provides an important protection for witnesses who may be in a particularly vulnerable position as they have been identified as potentially being in danger but have not yet been included in the NWPP.

Section 22 Offences relating to Commonwealth or Territory participants

New section 22 will create two offences relating to disclosures about Commonwealth or Territory participants and two equivalent offences relating to disclosure of information about people undergoing assessment for inclusion in the NWPP as such participants.

Under new subsection 22(1) it will be an offence for a person to disclose information about a Commonwealth or Territory participant where (if the participant has a current NWPP identity) the information is about the original identity or a former NWPP identity of the participant and/or (in any case) could reveal that the individual is a participant. Information , in relation to the identity of a person, will be defined at section 3 (by Item 6) and will include, for example, information in relation to a person's appearance and address or location. This offence will be punishable by a maximum penalty of two years imprisonment. The penalty for this offence is consistent with other non-disclosure offences in Commonwealth legislation.

Section 5.6 of the Criminal Code will apply automatic fault elements to the physical elements of paragraphs (a), (b) and (d) of the offence. To establish this offence, the prosecution will need to prove beyond reasonable doubt that the person:

•

intentionally disclosed information about an individual

•

was reckless as to the circumstance that the individual was a participant (at the time the information was disclosed), and

•

was reckless as to the circumstance that the participant had a current NWPP identity at the time the information was disclosed, and the information was about the original identity or a former NWPP identity of the individual, and/or

•

was reckless as to the result that there was a risk that the disclosure of the information would reveal that the individual was a participant.

Under new subsection 22(2) it will be an offence for a person to disclose information about an individual undergoing assessment for inclusion in the NWPP as a Commonwealth or Territory participant where the disclosure may reveal that the individual is undergoing such assessment. This offence will be punishable by a maximum penalty of two years imprisonment. The penalty for this offence is consistent with other non-disclosure offences in Commonwealth legislation.

Section 5.6 of the Criminal Code will apply automatic fault elements to the physical elements of paragraphs (a), (b) and (d) of the offence. To establish this offence, the prosecution will need to prove beyond reasonable doubt that the person:

•

intentionally disclosed information about an individual

•

was reckless as to the circumstance that the individual was undergoing assessment for inclusion in the NWPP at the time the information was disclosed, and

•

was reckless as to the result that there was a risk that the disclosure of the information would reveal that the individual was undergoing such assessment.

Under subsection 22(3) it will be an offence for a person to disclose information about a Commonwealth or Territory participant where (if the participant has a current NWPP identity) the information is about the original identity or a former NWPP identity of the participant and/or (in any case) could reveal that the individual is a participant, and where there is a risk that the disclosure will compromise the security of the individual. This offence will be punishable by a maximum penalty of ten years imprisonment. This penalty is appropriate to ensure that there is a significant deterrent for disclosing information where the person is aware that there is a risk that the disclosure will compromise the security of a NWPP participant. This penalty is consistent with the penalty for an offence against current subsection 22(1) of the Act, which will be repealed by Item 52.

Section 5.6 of the Criminal Code will apply automatic fault elements to the physical elements of paragraphs (a), (b), (d) and (e) of the offence. To establish this offence, the prosecution will need to prove beyond reasonable doubt that the person:

•

intentionally disclosed information about an individual

•

was reckless as to the circumstance that the individual was a participant (at the time the information was disclosed), and

•

was reckless as to the circumstance that the participant had a current NWPP identity at the time the information was disclosed, and the information was about the original identity or a former NWPP identity of the individual, and/or

•

was reckless as to the result that there was a risk that the disclosure of the information would reveal that the individual was a participant, and

•

was reckless as to whether there was a risk that his or her disclosure of the information would compromise the security of the individual.

Under subsection 22(4) it will be an offence for a person to disclose information about an individual undergoing assessment for inclusion in the NWPP as a Commonwealth or Territory participant where the disclosure may reveal that the individual is undergoing such assessment, and where there is a risk that the disclosure will compromise the security of the individual undergoing assessment. This offence will be punishable by a maximum penalty of ten years imprisonment. This penalty is appropriate to ensure that there is a significant deterrent for disclosing information where the person is aware that there is a risk that the disclosure will compromise the security of a person undergoing assessment to be included in the NWPP as a participant. This penalty is consistent with that imposed for the equivalent offence of disclosing information that may compromise the security of a Commonwealth or Territory participant under subsection 22(3).

Section 5.6 of the Criminal Code will apply automatic fault elements to the physical elements of paragraphs (a), (b), (d) and (e) of the offence. To establish this offence, the prosecution will need to prove beyond reasonable doubt that the person:

•

intentionally disclosed information about an individual

•

was reckless as to the circumstance that the individual was undergoing assessment for inclusion in the NWPP at the time the information was disclosed

•

was reckless as to the result that there was a risk that the disclosure of the information would reveal that the individual was undergoing such assessment, and

•

was reckless as to the result that there was a risk that his or her disclosure of the information would compromise the security of the individual.

Elements common to offences in section 22

Section 5.4 of the Criminal Code provides that a person is reckless with respect to a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk. Section 5.4 of the Criminal Code provides that a person is reckless with respect to a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

Subsection 22(5) will provide that disclosure of information that would otherwise be an offence under subsections 22(1), 22(2), 22(3) or 22(4) is not an offence if the disclosure has been:

•

authorised by the Commissioner

•

made for the purpose of making a complaint or providing information to the Ombudsman

•

made to the Australian Commission for Law Enforcement Integrity for the purpose of referring to the Integrity Commissioner an allegation or information that raises a corruption issue

•

made for the purpose of giving information that raises an AFP conduct or practices issue, or investigating or resolving such an issue.

This safeguard will be included to ensure that a person is not unfairly penalised for making a disclosure in such circumstances.

A defendant will bear an evidential burden in relation to subsection 22(5). Section 13.3 of the Criminal Code provides that in the case of a standard 'evidential burden' defence, the defendant bears the burden of pointing to evidence that suggests a reasonable possibility that the defence is made out. If this is done, the prosecution must refute the defence beyond reasonable doubt (section 13.1). An evidential burden defence has been used because a defendant would be better placed to point to evidence that the disclosure had been made in one of the circumstances listed in this subsection.

The use of the evidential burden defence in subsection 22(5) is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers . The Guide refers to the principle that it is legitimate to cast a matter as an evidential burden defence where a matter is peculiarly within the defendant's knowledge and is not available to the prosecution.

Subsection 22(7) will clarify that a person may be convicted of an offence against section 22 because of a risk that a disclosure will have a particular effect, even if the disclosure does not actually have that effect. For example, with respect to the offences at subsections 22(3) and 22(4), it will not be necessary for the prosecution to prove that the security of an individual was in fact compromised. However, the prosecution will need to adduce evidence that there was a risk that the disclosure could have compromised the individual.

The prosecution will not be required to prove that the person knew that the individual was a Commonwealth or Territory participant or was undergoing assessment for inclusion in the NWPP as such a participant. Absolute liability will be applied to paragraphs 1(c), 2(c), 3(c) and 4(c). The effect of applying absolute liability to these elements will be that no fault element needs to proved and the defence of mistake of fact will not be available. Absolute liability is appropriate and required for these elements of the offences because the circumstance that the individual is a Commonwealth or Territory participant, or is undergoing assessment for inclusion in the NWPP as such a participant, is a jurisdictional element. A jurisdictional element of an offence is an element that does not relate to the substance of the offence, but marks a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth and those that do not. This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers .

Section 22A Offences relating to State participants

Section 22A will create two offences relating to disclosures about State participants and two equivalent offences relating to disclosure of information about people undergoing assessment for inclusion in the NWPP as such participants.

Under new subsection 22A(1) it will be an offence for a person to disclose information about a State participant where (if the participant has a current NWPP identity) the information is about the original identity or a former NWPP identity of the participant and/or (in any case) could reveal that the individual is a participant. If the person disclosing the information is someone other than a Commonwealth officer, Commonwealth participant or Territory participant, there must also be a risk that disclosure of the information will adversely affect the NWPP for the offence to apply. This additional element has been included to ensure the offence has a sufficient link to Commonwealth legislative power. Information , in relation to the identity of a person, will be defined at section 3 (by Item 6) and will include, for example, information in relation to a person's appearance and address or location. This offence will be punishable by a maximum penalty of two years imprisonment. The penalty for this offence is consistent with other non-disclosure offences in Commonwealth legislation.

Section 5.6 of the Criminal Code will apply automatic fault elements to the physical elements of paragraphs (a), (b), (c), (e) and (f) of the offence. To establish this offence, the prosecution will need to prove beyond reasonable doubt that the person:

•

was reckless as to the circumstance that he or she is a Commonwealth officer, a Commonwealth participant, a State participant, a Territory participant or any other person

•

intentionally disclosed information about an individual

•

was reckless as to the circumstance that the individual was a participant (at the time the information was disclosed), and

•

was reckless as to the circumstance that the participant had a current NWPP identity at the time the information was disclosed, and the information was about the original identity or a former NWPP identity of the individual, and/or

•

was reckless as to the result that there was a risk that the disclosure of the information would reveal that the individual was a participant.

If the person disclosing the information is someone other than a Commonwealth officer, Commonwealth participant or Territory participant, the prosecution will also need to prove beyond reasonable doubt that the person was reckless as to the result that there was a risk that the disclosure of the information would adversely affect the integrity of the NWPP.

Under new subsection 22A(2) it will be an offence for a person to disclose information about an individual undergoing assessment for inclusion in the NWPP as a State participant where the disclosure may reveal that the individual is undergoing such assessment. If the person disclosing the information is someone other than a Commonwealth officer, Commonwealth participant or Territory participant, there must also be a risk that disclosure of the information will adversely affect the NWPP for the offence to apply. This additional element has been included to ensure the offence has a sufficient link to Commonwealth legislative power. This offence will be punishable by a maximum penalty of two years imprisonment. The penalty for this offence is consistent with other non-disclosure offences in Commonwealth legislation.

Section 5.6 of the Criminal Code will apply automatic fault elements to the physical elements of paragraphs (a), (b), (c), (e) and (f) of the offence. To establish this offence, the prosecution will need to prove beyond reasonable doubt that the person:

•

was reckless as to the circumstance that he or she is a Commonwealth officer, a Commonwealth participant, a State participant, a Territory participant or any other person

•

intentionally disclosed information about an individual

•

was reckless as to the circumstance that the individual was undergoing assessment for inclusion in the NWPP at the time the information was disclosed, and

•

was reckless as to the result that there was a risk that the disclosure of the information would reveal that the individual was undergoing such assessment.

If the person disclosing the information is someone other than a Commonwealth officer, Commonwealth participant or Territory participant, the prosecution will also need to prove beyond reasonable doubt that the person was reckless as to the result that there was a risk that the disclosure of the information would adversely affect the integrity of the NWPP.

Under new subsection 22A(3) it will be an offence for a person to disclose information about a State participant where (if the participant has a current NWPP identity) the information is about the original identity or a former NWPP identity of the participant and/or (in any case) could reveal that the individual is a participant, and where there is a risk that the disclosure will compromise the security of the individual. If the person disclosing the information is someone other than a Commonwealth officer, Commonwealth participant or Territory participant, there must also be a risk that disclosure of the information will adversely affect the NWPP for the offence to apply. This additional element has been included to ensure the offence has a sufficient link to Commonwealth legislative power. This offence will be punishable by a maximum penalty of ten years imprisonment. This penalty is appropriate to ensure that there is a significant deterrent for disclosing information where the person is aware that there is a risk that the disclosure will compromise the security of a NWPP participant. This penalty is consistent with the penalty for an offence against current subsection 22(1) of the Act, which will be repealed by Item 52.

Section 5.6 of the Criminal Code will apply automatic fault elements to the physical elements of paragraphs (a), (b), (c), (e), (f) and (g) of the offence. To establish this offence, the prosecution will need to prove beyond reasonable doubt that the person:

•

was reckless as to the circumstance that he or she is a Commonwealth officer, a Commonwealth participant, a State participant, a Territory participant or any other person

•

intentionally disclosed information about an individual

•

was reckless as to the circumstance that the individual was a participant (at the time the information was disclosed), and

•

was reckless as to the circumstance that the participant had a current NWPP identity at the time the information was disclosed, and the information was about the original identity or a former NWPP identity of the individual, and/or

•

was reckless as to the result that there was a risk that the disclosure of the information would reveal that the individual was a participant, and

•

was reckless as to the result that there was a risk that his or her disclosure of the information would compromise the security of the individual.

If the person disclosing the information is someone other than a Commonwealth officer, Commonwealth participant or Territory participant, the prosecution will also need to prove beyond reasonable doubt that the person was reckless as to the result that there was a risk that the disclosure of the information would adversely affect the integrity of the NWPP.

Under new subsection 22A(4) it will be an offence for a person to disclose information about an individual undergoing assessment for inclusion in the NWPP as a State participant where the disclosure may reveal that the individual is undergoing such assessment, and where there is a risk that the disclosure will compromise the security of the individual undergoing assessment. If the person disclosing the information is someone other than a Commonwealth officer, Commonwealth participant or Territory participant, there must also be a risk that disclosure of the information will adversely affect the NWPP for the offence to apply. This additional element has been included to ensure the offence has a sufficient link to Commonwealth legislative power. This offence will be punishable by a maximum penalty of ten years imprisonment. This penalty is appropriate to ensure that there is a significant deterrent for disclosing information where the person is aware that there is a risk that the disclosure will compromise the security of a NWPP participant. This penalty is consistent with the penalty for an offence against current subsection 22(1) of the Act, which will be repealed by Item 52.

Section 5.6 of the Criminal Code will apply automatic fault elements to the physical elements of paragraphs (a), (b), (c), (e), (f) and (g) of the offence. To establish this offence, the prosecution will need to prove beyond reasonable doubt that the person:

•

was reckless as to the circumstance that he or she is a Commonwealth officer, a Commonwealth participant, a State participant, a Territory participant or any other person

•

intentionally disclosed information about an individual

•

was reckless as to the circumstance that the individual was undergoing assessment for inclusion in the NWPP at the time the information was disclosed

•

was reckless as to the result that there was a risk that the disclosure of the information would reveal that the individual was undergoing such assessment, and

•

was reckless as to the result that there was a risk that his or her disclosure of the information would compromise the security of the individual.

If the person disclosing the information is someone other than a Commonwealth officer, Commonwealth participant or Territory participant, the prosecution will also need to prove beyond reasonable doubt that the person was reckless as to the result that there was a risk that the disclosure of the information would adversely affect the integrity of the NWPP.

Elements common to offences in section 22A

Section 5.4 of the Criminal Code provides that a person is reckless with respect to a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk. Section 5.4 of the Criminal Code provides that a person is reckless with respect to a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

Subsection 22A(5) will provide that disclosure of information that would otherwise be an offence under subsections 22A(1), 22A(2), 22A(3) or 22A(4) is not an offence if the disclosure has been:

•

authorised by the Commissioner

•

made for the purpose of making a complaint or providing information to the Ombudsman

•

made to the Australian Commission for Law Enforcement Integrity for the purpose of referring to the Integrity Commissioner an allegation or information that raises a corruption issue

•

made for the purpose of giving information that raises an AFP conduct or practices issue, or investigating or resolving such an issue.

This safeguard will be included to ensure that a person is not unfairly penalised for making a disclosure in such circumstances.

A defendant will bear an evidential burden in relation to subsection 22A(5). Section 13.3 of the Criminal Code provides that in the case of a standard 'evidential burden' defence, the defendant bears the burden of pointing to evidence that suggests a reasonable possibility that the defence is made out. If this is done, the prosecution must refute the defence beyond reasonable doubt (section 13.1). An evidential burden defence has been used because a defendant would be better placed to point to evidence that the disclosure had been made in one of the circumstances listed in this subsection.

The use of the evidential burden defence in subsection 22A(5) is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers . The Guide refers to the principle that it is legitimate to cast a matter as an evidential burden defence where a matter is peculiarly within the defendant's knowledge and is not available to the prosecution.

Subsection 22A(7) will clarify that a person may be convicted of an offence against section 22A because of a risk that a disclosure will have a particular effect, even if the disclosure does not actually have that effect. For example, with respect to the offences at subsections 22A(3) and 22A(4), it will not be necessary for the prosecution to prove that the security of an individual was in fact compromised. However, the prosecution will need to adduce evidence that there was a risk that the disclosure could have compromised the individual.

The prosecution will not be required to prove that the person knew that the individual was a State participant or was undergoing assessment for inclusion in the NWPP as such a participant. Absolute liability will be applied to paragraphs 1(d), 2(d), 3(d) and 4(d). The effect of applying absolute liability to these elements will be that no fault element needs to proved and the defence of mistake of fact will not be available. Absolute liability is appropriate and required for these elements of the offences because the circumstance that the individual is a State participant, or is undergoing assessment for inclusion in the NWPP as such a participant, is a jurisdictional element. A jurisdictional element of an offence is an element that does not relate to the substance of the offence, but marks a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth and those that do not. This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers .

Section 22B Offences relating to disclosure of information about the NWPP

Section 22B will replace the offence currently at subsection 22(2) concerning disclosure of information about the NWPP with two separate offences. The first offence will apply to NWPP participants and those who are undergoing or have undergone assessment for inclusion in the NWPP as participants. The second offence will apply to all other persons.

The offence currently at subsection 22(2) applies to current and former Commonwealth participants and those who have undergone assessment for inclusion as such participants. Section 22B(1) will extend the application of that offence to State and Territory participants (including former participants, because of the revised definition of participant inserted by Item 8). This will ensure that obligations imposed on Commonwealth participants are likewise imposed on State and Territory participants. It will also extend the application of the offence to people undergoing assessment for inclusion in the NWPP as a Commonwealth, State or Territory participant. This amendment recognises that a person who is not a participant, but who is undergoing assessment for inclusion in the NWPP, could during that process become aware of sensitive information about the operation of the NWPP.

Under subsection 22B(1), it will be an offence for a NWPP participant, or someone who is undergoing or has undergone assessment for inclusion in the NWPP as a participant, to disclose that fact, or other information about the NWPP. Such people may have knowledge of the NWPP that, if disclosed, could adversely affect the integrity of the NWPP and endanger participants and others involved in the NWPP through their work. This offence will be punishable by a maximum penalty of five years imprisonment. This penalty is consistent with the penalty for an offence against current subsection 22(2) of the Act, which will be repealed by Item 52.

Section 5.6 of the Criminal Code will apply automatic fault elements to the physical elements of the offence. To establish this offence, the prosecution will need to prove beyond reasonable doubt that the person:

•

was reckless as to the circumstance that he or she is a Commonwealth participant, a Territory participant or a State participant, or

•

was reckless as to the circumstance that he or she was undergoing or had undergone assessment for inclusion in the NWPP as a Commonwealth participant, a Territory participant or a State participant, and

•

intentionally disclosed any of the information set out at subparagraphs 22B(1)(b)(i), (ii), (iii), (iv) or (v).

Section 5.4 of the Criminal Code provides that a person is reckless with respect to a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

Subsection 22B(2) will extend the application of the offence currently at subsection 22(2) to people who are not participants and are not undergoing, and have not undergone, assessment for inclusion in the NWPP as a participant. This amendment recognises that there could be instances of people not directly involved in the NWPP nevertheless finding out information about the NWPP that, if disclosed, could adversely affect the integrity of the NWPP and endanger participants and others involved in the NWPP through their work.

Under subsection 22B(2), it will be an offence for someone who is not a participant and is not undergoing and has not undergone assessment for inclusion in the NWPP as a participant to disclose information, where there is a risk that the disclosure will adversely affect the integrity of the NWPP and/or compromise the security of the Commissioner, a Deputy Commissioner or an AFP employee or special member of the AFP who is, or has been, involved in the NWPP. This offence will be punishable by a maximum penalty of five years imprisonment. This penalty is consistent with the penalty for an offence against current subsection 22(2) of the Act, which will be repealed by Item 52, and the offence at new subsection 22B(1).

Section 5.6 of the Criminal Code will apply automatic fault elements to the physical elements of the offence. To establish this offence, the prosecution will need to prove beyond reasonable doubt that the person:

•

intentionally disclosed information, and

•

was reckless as to the result that there was a risk that his or her disclosure of the information would adversely affect the integrity of the NWPP, and/or

•

was reckless as to the result that there was a risk that his or her disclosure of the information would compromise the security of the Commissioner, a Deputy Commissioner or an AFP employee or special member of the AFP who was, or had been, involved in the NWPP.

Section 5.4 of the Criminal Code provides that a person is reckless with respect to a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

Subsection 22B(4) will clarify that a person may be convicted of an offence against subsection 22B(2) because of a risk that a disclosure will have a particular effect, even if the disclosure does not actually have that effect. For example, in relation to 22B(2)(c)(i), it will not be necessary for the prosecution to prove that the integrity of the NWPP was in fact adversely affected. However, the prosecution will need to adduce evidence that there was a risk that the disclosure could have adversely affected the integrity of the NWPP.

Subsection 22B(3) will provide that disclosure of information that would otherwise be an offence under subsections 22B(1) or 22B(2) is not an offence if the disclosure has been:

•

authorised by the Commissioner

•

made for the purpose of making a complaint or providing information to the Ombudsman

•

made to the Australian Commission for Law Enforcement Integrity for the purpose of referring to the Integrity Commissioner an allegation or information that raises a corruption issue

•

made for the purpose of giving information that raises an AFP conduct or practices issue, or investigating or resolving such an issue.

This safeguard will be included to ensure that a person is not unfairly penalised for making a disclosure in such circumstances.

A defendant will bear an evidential burden in relation to subsection 22B(3). Section 13.3 of the Criminal Code provides that in the case of a standard 'evidential burden' defence, the defendant bears the burden of pointing to evidence that suggests a reasonable possibility that the defence is made out. If this is done, the prosecution must refute the defence beyond reasonable doubt (section 13.1). An evidential burden defence has been used because a defendant would be better placed to point to evidence that the disclosure had been made in one of the circumstances listed in this subsection.

The use of the evidential burden defence in subsection 22B(3) is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers . The Guide refers to the principle that it is legitimate to cast a matter as an evidential burden defence where a matter is peculiarly within the defendant's knowledge and is not available to the prosecution.

Section 22C Disclosures to courts, etc

Subsection 22C(1) will clarify that the non-disclosure offences at sections 22, 22A and 22B (as inserted by this Item) apply to disclosure of information to a court, tribunal, a Royal Commission of the Commonwealth, a State or a Territory or any other commission of inquiry. Subsection 22C(2) provides that the application of subsection 22C(1) does not affect the operation of subsection 26(3).

Section 26 provides that the Commissioner, a Deputy Commissioner, AFP employees, special members of the Australian Federal Police, the Ombudsman and members of the Ombudsman's staff are not generally to be required to disclose certain information in a court or before a Royal Commission of the Commonwealth, a State or a Territory or any other commission of inquiry. Subsection 26(3) allows these people to disclose the relevant information if it is essential to the determination of legal proceedings that the judge or magistrate be advised of a NWPP participant's location and circumstances. The purpose of subsection 22C(2) is to ensure that it is clear that a person who discloses information in accordance with subsection 26(3) does not commit an offence under section 22, 22A or 22B.

Items 53 - 55

Section 25 allows the Commissioner to delegate, by writing, some of his or her powers under the Act to a person who holds a designated position. 'Designated person' is defined at section 3 and includes the Commissioner, a Deputy Commissioner and certain AFP employees and special members of the Australian Federal Police whose duties relate to the NWPP.

Item 53

Item 55 will insert new subsection 25(4) to limit the delegation of the Commissioner's powers under new subsections 13(5) and 13(7). Item 53 will insert a cross-reference to that subsection at subsection 25(1).

Item 54

Subsection 25(3) provides that certain powers of the Commissioner under the Act may only be delegated to a Deputy Commissioner. This ensures that there is an appropriate level of accountability for important powers such as deciding whether to include a witness in the NWPP. This subsection currently applies to a Commissioner's powers under a number of provisions, including section 27, which concerns actions the Commissioner may take if:

•

a participant is to be a witness in a criminal proceeding under his or her current NWPP identity, and

•

the participant has a criminal record under his or her original identity or any former NWPP identity.

Item 66 will insert new section 27A, which will be a similar provision relating to a participant being involved in civil proceedings. Item 54 will provide that the Commissioner's powers under section 27A may only be delegated to a Deputy Commissioner, consistent with the limitation on delegation of powers under section 27.

Item 55

Item 22 will insert new subsection 13(5), which will enable the Commissioner to provide assistance to a former participant or any other person whose relationship with a former participant is such that the Commissioner is satisfied that it is appropriate to take those actions, as if that person were a witness included in the NWPP. Item 22 will also insert new subsection 13(7), which will require the Commissioner to give the Immigration Secretary written notice when he or she first takes action under subsection 13(5) in respect of a former participant who was a participant under section 10 or 10A of the Act.

Item 55 will insert new subsection 25(4) at section 25 to limit the delegation of a Commissioner's powers under new subsections 13(5) and 13(7) to a Deputy Commissioner, Assistant Commissioner or a person occupying an equivalent or higher rank in the Australian Federal Police. Decisions of the Commissioner to include a witness in the NWPP may only be delegated to a Deputy Commissioner. Protection and assistance provided under new subsection 13(5) will need to be provided quickly to avoid endangering the relevant person. It is appropriate in that context to allow decisions under that subsection to be delegated to an Assistant Commissioner or a person occupying an equivalent or higher rank in the Australian Federal Police to avoid delays.

Items 56 - 58

Subsection 26 (1) provides that except in certain circumstances, the Commissioner, a Deputy Commissioner, an AFP employee or a special member of the Australian Federal Police is not to be required to disclose particular information relating to the NWPP in certain proceedings.

Item 56

Item 56 will amend paragraph 26(1)(a) to clarify that subsection 26(1) applies to State and Territory Royal Commissions as well as Commonwealth Royal Commissions, and to refer to 'any other commission of inquiry' instead of 'an approved authority'. This amendment will ensure that the paragraph is consistent with other references to commissions of inquiry in the Act. It also removes the potential for confusion arising from the current use of the term 'approved authority', which is defined at section 3 to have a different meaning to that intended in this section.

Item 57

Item 57 will clarify that paragraphs 26(1)(a) and 26(1)(b) apply to documents, matters and things that the Commissioner, a Deputy Commissioner, an AFP employee or a special member of the Australian Federal Police has come across in the exercise of powers under the Act as well as in the course of, or because of, the performance of functions or duties under the Act. This amendment ensures that it is clear that such persons are not to be required to disclose such information in certain proceedings, unless subsection 26(3) applies or it is necessary to do so for the purposes of the Act. Subsection 26(3) allows these people to disclose the relevant information if it is essential to the determination of legal proceedings that the judge or magistrate be advised of a NWPP participant's location and circumstances.

Item 58

Item 58 will insert a new provision into subsection 26(1) to ensure the protection of the identity of AFP employees and special members of the Australian Federal Police who administer or are involved in the operation of the NWPP. Protecting the identity of those involved in administering the NWPP is necessary to ensure the protection of NWPP participants. For example, if a person knows the identity of an AFP employee involved in the operation of the NWPP and sees that employee interacting regularly with a witness, it could be revealed that the witness is a NWPP participant.

Subparagraph 26(1)(c)(i) will provide that the Commissioner, a Deputy Commissioner, an AFP employee or a special member of the Australian Federal Police is not generally to be required to provide information about the identity of, or information that would reveal the identity of, an AFP employee or a special member of the Australian Federal Police who is involved in the operation of the NWPP in certain proceedings, unless subsection 26(3) applies or it is necessary to do so for the purposes of the Act. Subparagraph 26(1)(c)(ii) will provide that the restriction will generally apply if the person has the information as a result of the performance of functions or duties or the exercise of powers under the Act. Subsection 26(3) allows these people to disclose the relevant information if it is essential to the determination of legal proceedings that the judge or magistrate be advised of a NWPP participant's location and circumstances.

Items 59 - 60

Subsection 26 (2) provides that except in certain circumstances, the Commonwealth Ombudsman or a member of staff of the Commonwealth Ombudsman is not to be required to disclose particular information relating to the NWPP in certain proceedings.

Item 59

Item 59 will amend paragraph 26(2)(a) to clarify that subsection 26(2) applies to State and Territory Royal Commissions as well as Commonwealth Royal Commissions, and to refer to 'any other commission of inquiry' instead of 'an approved authority'. This amendment will ensure that the paragraph is consistent with other references to commissions of inquiry in the Act. It also removes the potential for confusion arising from the current use of the term 'approved authority', which is defined at section 3 of the Act to have a different meaning to that intended in this section.

Item 60

Item 60 will insert a new provision into subsection 26(2) to ensure the protection of the identity of AFP employees and special members of the Australian Federal Police who administer, or are involved in, the operation of the NWPP. Protecting the identity of those involved in administering the NWPP is necessary to ensure the protection of NWPP participants. For example, if a person knows the identity of an AFP employee involved in the operation of the NWPP and sees that employee interacting regularly with a witness, it could be revealed that the witness is a NWPP participant.

Subparagraph 26(2)(c)(i) will provide that the Commonwealth Ombudsman or a member of staff of the Commonwealth Ombudsman is not generally to be required to provide information about the identity of, or information that would reveal the identity of, an AFP employee or a special member of the Australian Federal Police who is involved in the operation of the NWPP in certain proceedings, unless subsection 26(3) applies or it is necessary to do so for the purposes of the Act. Subparagraph 26(2)(c)(ii) will provide that the restriction will generally apply if the person has the information as a result of the performance of functions or duties or the exercise of powers in relation to the Act. Subsection 26(3) allows these people to disclose the relevant information if it is essential to the determination of legal proceedings that the judge or magistrate be advised of a NWPP participant's location and circumstances.

Item 61

Item 61 will amend subsection 26(3) to extend the application of the exception to subsections 26(1) and (2), which are described above at items 56 to 60. Subsection 26(3) currently provides that if it is essential to the determination of legal proceedings under or in relation to a law of the Commonwealth that the judge of magistrate be advised of a NWPP participant's location and circumstances, information that could not otherwise be required to be disclosed except where the disclosure is necessary for the purposes of the Act may be disclosed. The amendment will provide that the exception applies also to legal proceedings under or in relation to a law of a State or Territory. Disclosure should be permitted in such circumstances regardless of whether the relevant proceedings concern a Commonwealth law or State or Territory law, particularly as witnesses in State or Territory cases may be included in the NWPP.

Items 62 - 63

Items 62 and 63 will make technical amendments to subsection 26(5) that are necessary because of a change that will be made to the definition of participant at section 3 inserted by Item 8. The new definition of participant at section 3 will expressly include former participants unless the contrary intention appears. These items will remove references to a former participant from subsection 26(5) as they will now be redundant. These items do not make any substantive change to the operation of section 26, which concerns information disclosures which may or may not be required by a court, tribunal, Royal Commission of the Commonwealth, a State or a Territory or any other commission of inquiry.

Items 64 - 65

Items 64 and 65 will make technical amendments to section 27 as a result of changes to be made to the definitions at section 3 of the Act. These amendments are required for the following reasons.

•

Proposed changes to the definitions in section 3 made by Items 2, 3 and 7 will differentiate between a participant's original identity, current NWPP identity and former NWPP identity. Item 64 will clarify that the current reference to former identity at subsection 27(1) will now encompass both the participant's original identity (that which the person had at the time immediately before he or she was first provided with an identity under the NWPP) and any identity provided to the participant under the NWPP that the participant is not currently using.

•

The proposed new section 3 definition of participant inserted by Item 8 will expressly include former participants unless the contrary intention appears. Item 65 will remove a reference to a former participant from subsection 27(2) as it will now be redundant.

Item 66

Item 66 will insert a new section 27A. New subsection 27A(1) will require a participant to notify the Commissioner if he or she is to be involved in a civil proceeding, under his or her current NWPP identity, in which his or her identity is in issue. New subsection 27A(2) will provide that after receiving such notification, the Commissioner may take any action that he or she considers appropriate in the circumstances. This could include notifying the court of legal obligations the participant has relating to their original identity or a former NWPP identity. Section 27A will create an obligation in relation a participant's involvement in civil proceedings similar to the obligation existing section 27 imposes in relation to involvement in criminal proceedings. However, in the case of civil proceedings, the obligation will only apply where the participant's identity is in issue in those proceedings. Section 27A will help to preserve the integrity of the NWPP and ensure that participants do not use their current NWPP identity to avoid legal obligations relating to their original identity or a former NWPP identity. Such obligations could include, for example, child support payments or, if the participant owns a business, obligations to employees.

New subsection 27A(3) will define 'civil proceeding' for the purposes of section 27A. 'Civil proceeding' will mean any proceeding in a court, tribunal, a Royal Commission of the Commonwealth, a State or a Territory or any other commission of inquiry other than a criminal proceeding.

Item 67

Section 28 currently provides that if the identity of a Commonwealth participant is in issue or may be disclosed in proceedings, the court, tribunal or commission, must, unless it considers that the interests of justice require otherwise, take certain actions to ensure the protection of the participant's identity. Item 67 will repeal existing section 28 and replace it with new sections 28 and 28A to extend the provision to State participants and Territory participants, update the provision so it is more consistent with similar provisions in Commonwealth legislation and insert a new offence.

Section 28

Subsection 28(1) will provide that new section 28 will apply if:

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the original identity or a former NWPP identity of a Commonwealth, State or Territory participant (paragraph (1)(a)) and/or

•

the fact that a person is such a participant (paragraph (1)(b)), and/or

•

the fact that a person has undergone or is undergoing assessment for inclusion in the NWPP as such a participant (paragraph (1)(c))

is in issue, or may be disclosed, in any proceedings before a court, tribunal, a Royal Commission of the Commonwealth, a State or a Territory or any other commission of inquiry.

Paragraph 28(2)(a) will require that the court, tribunal or commission 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 one or more of the matters in paragraphs (1)(a), (b) or (c).

Paragraph 28(2)(b) will require the court, tribunal or commission to make such orders relating to the suppression of publication of evidence given before it as, in its opinion, will ensure that those matters are not made public. Subsection 28(3) will clarify that paragraph 28(2)(b) does not prevent a transcript being taken of the relevant proceedings, but that the court may make an order for how the transcript is to be dealt with, including an order suppressing its publication.

Paragraph 28(2)(c) will require that the court, tribunal or commission must, unless it considers that it is not in the interests of justice to do so, make such orders as it considers appropriate to ensure that those matters, or information that may compromise the security of a person referred to in paragraph (1)(a), (b) or (c) are not made public.

Section 28A

Under section 28A it will be an offence for a person to engage in conduct that contravenes an order made by a court, tribunal or commission under section 28. This offence will be punishable by a maximum penalty of two years imprisonment. The penalty for this offence is consistent with other non-disclosure offences in Commonwealth legislation. Section 5.6 of the Criminal Code will apply automatic fault elements to the physical elements of the offence. To establish this offence, the prosecution will need to prove beyond reasonable doubt that the person:

•

was reckless as to the circumstance that an order was in force under section 28

•

intentionally engaged in conduct

•

was reckless as to the result that the conduct contravened the order.

Section 5.4 of the Criminal Code provides that a person is reckless with respect to a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk. Section 5.4 of the Criminal Code provides that a person is reckless with respect to a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

Subsection 28A(2) clarifies that section 28A does not limit any other powers of the body that made the order under section 28. This would include the power of the court to punish a person for contempt.

Item 68

Section 30 requires the Commissioner to keep the Minister informed of the general operations, performance and effectiveness of the NWPP and, in particular, the exercise of powers under section 27. Section 27 concerns actions the Commissioner may take if:

•

a participant is to be a witness in a criminal proceeding under his or her current NWPP identity, and

•

the participant has a criminal record under his or her original identity or any former NWPP identity.

Item 66 will insert new section 27A, which will be a similar provision relating to a participant being involved in civil proceedings. Item 68 will amend section 30 to provide that the Commissioner must also keep the Minister informed about the exercise of powers under section 27A.

Item 69

This item is a saving provision that will clarify the status of declarations of complementary witness protection laws made under existing section 3 prior to the commencement of the amendments in items 1 and 13 of this Schedule.

Subitem 69(1) is included to assist readers. It provides an explanation of the status of declarations made under existing section 3 of the Act - that is, that they are not legislative instruments as they do not come within the definition of 'legislative instrument' at section 5 of the Legislative Instruments Act. This item is not a declaration under section 7 of the Legislative Instruments Act that the declarations made under existing section 3 are not legislative instruments. Instead, it is a clarification of the status of the declarations, included solely to assist readers.

Subitem 69(2) is a saving provision that will ensure that any declarations of complementary witness protection laws made under current section 3 of the Witness Protection Act that are in force at the commencement of this Schedule will continue to have effect, subject to subitem 69(1), as if they had been made under new section 3AA of the Act.

To facilitate public access, it is intended that existing declarations made under current section 3 of the Act will be remade under new section 3AA of the Act and registered on FRLI.

Items 70 - 71

Items 70 and 71 are application provisions in relation to new subsection 13(5) (inserted by Item 22) and section 16 as amended by Items 25-31.

Item 70

Item 70 will clarify that the Commissioner may take action under new subsection 13(5) on or after the commencement of this item, whether the former participant became a former participant before, on or after that commencement. This item is included to ensure that it is clear that upon commencement, action may be taken under new subsection 13(5) to provide protection and assistance to a former participant regardless of when that former participant became a former participant. A definition of former participant will be inserted into section 3 by Item 4 to mean a person who has ceased to be included in the NWPP.

Item 71

Item 71 will provide that section 16 as amended by this Schedule will apply on and after commencement of this item in relation to a permission given under paragraph 16(1)(b) before that commencement as if the permission had been given under that paragraph, as amended by Items 25-31, in relation to the participant's original identity. This will mean that if a participant has been given permission under existing paragraph 16(1)(b) not to disclose his or her former identity for a particular purpose, that permission will apply upon commencement of this item to the participant's original identity but not any former NWPP identity of the participant. Items 2, 3 and 7 will insert definitions of original identity, current NWPP identity and former NWPP identity into section 3.