Crimes Act 1914

Part IACA - Witness identity protection for operatives  

Division 2 - Witness Identity Protection Certificates for Operatives  

SECTION 15MM   Disclosure of operative's identity etc despite certificate  

(1)    
This section applies if a witness identity protection certificate for an operative in relation to a proceeding is filed in a court.

(2)    
A party to the proceeding, or a lawyer assisting the court in the proceeding, may apply to the court:

(a) for leave:

(i) to ask a question of a witness, including the operative, that may lead to the disclosure of the operative's identity or where the operative lives; or

(ii) for a person involved in the proceeding to make a statement that discloses, or may lead to the disclosure of, the operative's identity or where the operative lives; or

(b) for an order requiring a witness, including the operative, to answer a question, give evidence or provide information that discloses, or may lead to the disclosure of, the operative's identity or where the operative lives.

(3)    
In this section:

person involved in the proceeding
has the same meaning as in subsection 15MJ(3) .

(4)    
The court may do either or both of the following:

(a) give leave for the party or lawyer to do anything mentioned in paragraph (2)(a);

(b) make an order requiring a witness to do anything mentioned in paragraph (2)(b).

(5)    
However, the court must not give leave or make an order unless it is satisfied about each of the following:

(a) there is evidence that, if accepted, would substantially call into question the operative's credibility;

(b) it would be impractical to test properly the credibility of the operative without allowing the risk of disclosure of, or disclosing, the operative's identity or where the operative lives;

(c) it is in the interests of justice for the operative's credibility to be able to be tested.

(6)    
If there is a jury in the proceeding, the application must be heard in the absence of the jury.

(7)    
Unless the court considers that the interests of justice require otherwise, the court must be closed when:

(a) the application is made; and

(b) if leave is given or an order is made - the question is asked (and answered), the evidence is given, the information is provided or the statement is made.

(8)    
The court must make an order suppressing the publication of anything said when:

(a) the application is made; and

(b) if leave is given or an order is made - the question is asked (and answered), the evidence is given, the information is provided or the statement is made.

(9)    
To avoid doubt, subsection (8) does not prevent the taking of a transcript of court proceedings, but the court may make an order for how the transcript is to be dealt with, including an order suppressing its publication.

(10)    
The court may make any other order it considers appropriate to protect the operative's identity or to prevent the disclosure of where the operative lives.

(11)    
A person commits an offence if:

(a) an order has been made under subsection (8), (9) or (10); and

(b) the person engages in conduct; and

(c) the conduct contravenes the order.

Penalty: Imprisonment for 2 years.

(12)    
Subsection (11) does not limit the court's powers, including, but not limited to, the court's power to punish for contempt.