Please note: This is an extract from Hansard only. Hansard extracts are reproduced with permission from the Parliament of Tasmania.

WITNESS PROTECTION BILL 2000 (No. 12)
Second Reading

Mr LLEWELLYN (Lyons - Minister for Police and Public Safety - 2R) - Mr Deputy Speaker, I move -

That the bill be now read the second time.

The purpose of the Witness Protection Bill 2000 is to enable the establishment of a witness protection program within the State. The legislation will provide for cross-jurisdictional consistency together with consistency towards the protection of participants within the program. The witness protection program aims to provide protection and an amenity to high-risk witnesses who are prepared to give evidence in both criminal and family court matters but who fear extreme retribution. Consequently it has become necessary on occasions to establish new identities and relocate witnesses in order to ensure their safety.

Legal advice, both here and nationally, encouraged the enactment of witness protection laws, particularly where a person discloses information that identifies or compromises the security of a protected witness. Any such offences of disclosure must for constitutional reasons be enshrined within State legislation. Tasmania has been one of only two jurisdictions, the other being the Northern Territory, that did not have witness protection laws to date. Given the significant number of jurisdictions which have moved to enact legislation, it was incumbent on this Government to support a national scheme which would, with the absence of a State witness protection program, place in jeopardy some other similar programs.

Protection and assistance under a witness protection program is only made available in proceedings where the offences involve a significant degree of criminality - for example, murder, kidnapping, drug trafficking and organised activity in paedophilia. The introduction of a witness protection program is a vital policing strategy and when combined with the Telecommunications (Interception) Tasmania Act 1999 provides this State's police service with a formidable approach to law enforcement. The absence of the requisite legislation inhibits the capacity and capability of police to protect witnesses within this and other jurisdictions.

This issue has some national significance considering the mobility of criminals and their disregard for jurisdictional boundaries. The introduction of this legislation will minimise the risks against those participating in the program and allow them to live their lives with a degree of normality, stability and security. The bill is another example of the Government's progressive stance on law reform and to provide a safer environment in which members of the community may live.

The development of this bill has come about through broad consultation and is supported by all Australasian police jurisdictions, Department of Justice and Industrial Relations, Police Commissioners Conference Secretariat and the Office of the Ombudsman. The legislation reinforces the Government's commitment to law and order. I therefore commend the bill to the House.

Mr HIDDING (Lyons - Deputy Leader of the Opposition) - We, on this side of the House, will be supporting this legislation and we welcome the legislation that sets up the witness protection program in this State. We recognise that it is now necessary for this State to, I suppose, pull its weight in a national context. I am not absolutely clear from your speech, Minister, or from your notes whether or which other State is not-

Mr Llewellyn - No other State. The Northern Territory is the only one.

Mr HIDDING - Which obviously is going to make it complete the circle as far as this program goes and will not allow people to skip across State borders and jurisdictions to escape or to harass witnesses, I suppose. So it fits in with a national scheme.

It is something that is in use in, I think, most modern jurisdictions around the world. It has been accepted by most people that in order to obtain convictions for major crimes it could sometimes be necessary to remove from threat a person who would otherwise be called the perfect witness. The only way to do that I suppose is to put them elsewhere. Just how far that goes is not something that I propose to question the minister on in this House. I do not really want to know from the minister just how far away they send witnesses or where they might have to send them or how they might have to send them to places or what they do with their identities.

Quite seriously, the program either exists with a substantial degree of security or it does not exist at all and, on this side of the House, we recognise that while this might cost a deal of money, while this could be seen by some - I noticed in one of the newspapers today that the Public Interest Network is concerned about a number of factors. I would have thought they would be dancing in the streets because this is obviously as much about protecting the health of the person of a witness as it is about achieving a conviction. That is why you would do this. That is why somebody who has the knowledge and information with which to send somebody to gaol for a long time or whatever to achieve a conviction could well be in danger, especially in these days of simple methods of finding people across Australia.

It is not as though you just move them to another town in Tasmania. That is as it might have been ten or fifteen years ago. With reverse phone books now, on the Internet, I can find the phone number - only a couple of nights ago I found the phone number of a retired army colonel in Oklahoma, whom I have a connection with through a family friend, because I am looking for a particular document that I know he has that I want for a speech and I had lost his email address. Reverse phone book, American States, Oklahoma - there he was. There was my mate and I am now able to converse with him on the telephone. You have that kind of thing.

There are other methods people can use to find people pretty quickly in a State like Tasmania, let alone in a country like Australia. So you need good security and you need everything available at the Government's or in this case, through the separation of powers for the commissioners - everything available in their armoury to protect that witness.

We support this bill but it does raise for us a concern about the general matter of witness protection. In your speech, Minister, you raised the fact that this is to be afforded to cases that deal with a significant degree of criminality, such as murder and rape and -

Ms Putt - Kidnapping, I think, was one.

Mr HIDDING - kidnapping, drug trafficking and organised activity in paedophilia. I have to say through a fairly quick scan of the legislation, I am not absolutely sure that there is actually any such restriction upon the commissioner from offering this witness protection to people only involved in crime of significant criminality.

Mr Llewellyn - No, there is a general clause that enables us to take any matter into -

Mr HIDDING - That is right. So this witness protection is therefore available to anybody on any crime. But you have laid down the principle now in this House in your speech that it is to be used in association with crimes of significant criminality, which now allows us to raise the point on a matter that we have been concerned about for some time and that is, through feedback from community, through meetings such as the Dodges Ferry community group that met and 300 people turned up at and you were, unfortunately, not able to attend, Minister. All that and other meetings since around the place people have expressed great concern about the fact that they do not feel free to provide information to police in the first place and if they know a conviction or an arrest has been made or a charge has been laid they are very reluctant to come forward to assist with that case simply because of a fear of retribution. It seems to me that there is a significant problem in policing in this State, and that is growing.

I am not saying this is a brand new thing that we have stumbled across. Obviously people have been aware of it for some time and we were in government for many years and we could have dealt with it then too, I suppose. But what we are dealing with now is a bill that seeks to provide protection for people involved in cases of significant criminality. We are saying to you that we do not think it goes far enough but we support this piece of legislation.

I want to foreshadow that we will be tabling a bill in this House which will seek to amend the Criminal Code which will offer the same protection to a witness after a trial as is available to someone before and during a trial. The situation currently is, as I understand it -

Mr Llewellyn - This offers a protection.

Mr HIDDING - That is right, but you have just said that this is for cases of significant criminality.

Mr Llewellyn - I didn't say that exclusively.

Mr HIDDING - You are not seriously suggesting to me that if somebody in Dodges Ferry sees the house next door to him or her being broken into, and rings the police and says, 'Mr Policeman, I've identified that John Smith has just broken into the house next door. I want you to give me a new identity and send me away'. That is not going to happen. What we are saying is, we are agreeing to this bill but we are foreshadowing that we want to amend the Criminal Code to deal with the less major crimes, the serious but less serious crimes - somewhere in between somebody knocking off a pack of Lifesavers from the shop and the major crimes that are contemplated in this bill.

All I am doing is foreshadowing that we will be seeking to amend this Criminal Code because there is no protection for these people after the trial. My recent research shows that the loop of protection starts off very strongly. The Criminal Code in section 100 actually says:

'Any person who, with intent to pervert or obstruct the due course of justice, wilfully prevents, obstructs, or dissuades any person from attending as a witness ... is guilty of a crime'.

The charge is interfering with a witness and also perverting the course of justice - crimes with a maximum penalty of 21 years, serious crimes.

So there is a degree of cover for somebody, or a civic-minded citizen who says, 'I've got to do the right thing, I want to put my name forward and anybody who threatens me is subject up to a 21-year sentence. I feel reasonably comfortable about doing that'. But when you investigate the loop, you find that the minute the court case is over, that person has no more cover, none at all. They are just as open as any citizen to somebody coming up and saying, 'You were the one responsible for me getting a $1 200 fine and twelve months worth of community orders. I'm going to see you later, I'll get you, I'll burn your barn down', or something. We are proposing to close that loophole and make it just as available after the court case.

There is a precedent for this, and that is that the Commission of Inquiry Act which we have just been talking about actually provides for the same protection to somebody who potentially could give evidence, is giving evidence and has given evidence, but there is no such cover, as we understand it, in the Criminal Code. So that, by way of foreshadowing, to say to you that, yes, this is a good building block towards witness protection in this State and that when we fill in the loop all the way from somebody who witnesses the commission of a crime, all the way around in the scale of crimes - all the sorts of things you have - the maximum possible protection of law, possible within reason.

An offence against the Criminal Code is punishable by a sentence of up to 21 years and is a pretty serious offence, as it ought to be, especially as we are hearing now, more and more, that the fear of retribution is the reason they did not ring the police in the first place, and if they are aware of it and the person is charged, they just do not feel comfortable with going along to the court case and sitting up there and saying, 'Yes, your honour, I saw that man break into that house'. I never blame anybody who refuses to come forward for fear of retribution; I do not blame them, but I do want to ensure that in this House when we have measures available to us we make as much as possible the way smooth for them to come forward and give their evidence without some sort of fear.

All a person can do right now, as I understand it, is apply for a restraint order. My office as shadow minister for Police has many people coming forward with all sorts of complaints, and we deal with them all dispassionately and we hear them all through. I have to tell you, a lot of them are related to restraint orders and how hard it is to get one in some cases, and how simple it is other cases and how you have counter-restraint orders, that person has put one on me so I will put one on that person, they go along to these messy court cases where an accuser faces the accused and it is really something that a witness to a burglary should not have to contemplate. They should have special protection, only as it relates to that case of course.

We are not proposing anything brand new because I notice the Biological Control Act has it, the National Crime Authority (State Provisions) Act talks about 'has appeared' after the appearance and I know that you will look forward to those proposals with interest, Minister.

It is a major issue in policing; it is something that my party is becoming more and more aware of as we research this issue of law and order around the community and we want to be helpful to the police in the carrying out of their duties. In being in opposition, we are very careful with information and matters that come before us. We play our part in this loop of Government and Opposition and community and police addressing the law and order matters in this State.

I want to address one other matter that was raised publicly, I think by the Public Interest Network, who questioned whether the commissioner should have the sweeping powers that he will have under this legislation. We have given some thought to that; I have given significant thought to it. I want to say up front that the Tasmanian police service has the complete confidence of the State Opposition, as does the commissioner, and because of the very good record of the Tasmanian police service and the high regard in which they are held in this State, it is appropriate that the commissioner is the person in this State to have that single control. It is not something, the more you think this through, that you would want an elected member to ever have any knowledge about - an attorney-general, for instance, who I know has to give the tick-off for some phone tapping and things like that. There are things that an attorney-general needs to be aware of. I do not believe in witness protection that anybody outside, any civilian outside of the loop, ought to be involved in at all. You want it to go to the very top, you want him to have sweeping powers for it to be effective and I think that is the right place for it.

We welcome this legislation. We probably will have a few questions in Committee, I would think, but we will support the second reading.

Ms PUTT (Denison) - The Greens will also be supporting this legislation.

I have to say at the outset that I am disappointed that it has come on so quickly after it has been introduced without giving a lot of time for us to thoroughly research all the fine detail of it. I have actually just had to send someone off now to try to get some more information from the Public Interest Network about what their concerns were because I had organised to meet with them on it but I have not managed to have that meeting yet and it really does make it very difficult to debate the bill in full knowledge of all the issues and to really tease out all the matters that I think deserve proper debate and consideration. I would simply put to the minister that it is going to make it difficult to do our job properly of scrutinising what you have put forward.

I think for a long time we have probably needed some sort of witness protection like this and it does bring us into line with other States of Australia, as you have outlined in your second reading speech. Of course it is in the interests of the police and of Tasmania that we have a witness protection program because you do not get very far trying to prosecute someone when the witness turns up dead or missing, so clearly in order to actually facilitate successful prosecutions we need it.

I am originally a Sydney girl and I recall during the 1970s a lot of the rumour - and it turned out of course a lot of it was reality - that was around at the time about what would happen to people who were suspected of coming forward to the police and how bodies would turn up here and there and there was always the discussion that it was because they were going to grass up whoever it was about whatever it might have been. You sometimes wondered if you were living in some outrageous movie or if this was actually reality - I mean, I found it extraordinary to think that people were talking about these instances in a very real way with very real concerns because in my life of course I had not come anywhere near anything like that. But obviously that was on the go and particularly in the eastern suburbs of Sydney, very much alive and well.

Fortunately, Tasmania is not Sydney, but Tasmania is a very small place which means that if something has gone on and people do know something about it and they are talking, all sorts of people are likely to realise who is telling who what and all sorts of speculation happens. I know that even in the position that I am in now from time to time people will tell me bits and pieces that are rumoured to be under way, sometimes to do with police investigations, and the next thing you know a week later there it is reported in the press. So there is a healthy rumour mill and it sometimes seems to be quite well informed. There is no doubt that we need this legislation, absolutely no doubt whatsoever.

I think the other important aspect is that from the point of view of the witnesses it is sorely needed. If somebody is going to do the right thing by society and come forward and give evidence, they need to know they are going to be protected. They need to know that if they look after society's interests, society is going to look after them. That really is, I think, in many ways the kernel of what is contained here. So I am pleased to see this come forward.

Here is my briefing on the Public Interest Network arriving at this very moment. I did want to bring up the matters that are raised by the Public Interest Network and one other too that has occurred to me. I see that there is a capacity within this legislation for the right of appeal that a person has if their former identity is to be restored because their location is not known and reasonable steps have been taken to find them but with no result. We hope that is not because their new identity was discovered and they met the fate they were trying to avoid in the first place.

Mr Llewellyn - Say that again to me; I didn't get it all.

Ms PUTT - The commissioner can take action to restore a person's former identity if the person's location is not known and reasonable steps have been taken to find them but with no result. I was simply observing as an aside that we hope the reason for that is not because their new identity was found out and they actually got what they were trying to avoid in the first place. Under clause 23 apparently a person has a right to appeal to the Ombudsman and if that is done the restoration cannot take effect, or at least that is my understanding. I was interested in whether there is any right of appeal or recourse if a witness is seeking protection and the police commissioner does not grant it; if they believe earnestly that they deserve that protection but it is not given to them. On a very quick look through the act and the clause notes I cannot see that there is such a provision.

I suspect this might be what the Public Interest Network was trying to get to when they were saying that there needed to be a tribunal to assess the need for protection rather than simply the police commissioner. That is actually not in the matters that were reported in the press yesterday but rather in a report I heard on the radio where I heard a spokesperson for the Public Interest Network saying that she believed that there should be a tribunal of judges to determine whether somebody needed witness protection. Because I have not had an opportunity for a meeting, I do not actually know exactly what the basis of that concern was but it seems to me that perhaps it was along the lines of needing to be able to go somewhere other than the police commissioner if they felt that they did need protection and it had not been granted.

I know there are possibly going to be people who feel they need protection who do not deserve it but are we to accept that the police commissioner's judgment is in all cases infallible? I am not saying that generally he would not have a pretty good idea but I just wonder if there is a need for some ability to have the matter reconsidered in some way if a person is particularly anxious, and I wonder if the minister could address that issue.

The other matters raised by the Public Interest Network were simply that similar programs in other States had not worked and I wondered whether there had been an assessment of programs in other States and an improvement on areas where they had proved less than effective. There is cited here the case of a judicial inquiry in Western Australia into the death of a witness who was sent to a safe house and allegedly committed suicide. The other concern that Ms MacGregor of the Public Interest Network had was that she was worried about the case where police would be in charge of the program but the case may actually involve witnesses with information regarding the police. I suppose, again, if there was a case of that nature I can see why she would be suggesting that someone other than the police commissioner may need to be the person making the determination. That might sound fanciful but we know that in the case of New South Wales it was not necessarily, if I am to go back to that particular example, and there were links in New South Wales between police and organised crime. You can see that there could have been a potential in that circumstance for a witness protection program to itself become jeopardised.

I do not know whether you can ever entirely design a system that cannot have any flaw whatsoever, but I think that these issues that have been raised do warrant at least some discussion, that we have a look and try to see whether there is a need for either, as I said, some right of appeal or some other party outside the police, but certainly not along the lines of an elected representative or anything like that, as Mr Hidding was referring to, that could become involved. I am not sure whether the suggestion of a judicial tribunal works or not. I am not sure where that goes in terms of the separation of powers, given that we are talking about protecting witnesses who are presumably later going to come before the bench. It is an area that is pretty difficult and, as I say, had there been more opportunity to discuss the matters through with the Public Interest Network, I might have been able to give you some suggestion of the remedies that they propose, but obviously at this point I am not able to do that.

However, I am pleased, as I said, that we will have this witness protection program. We do need it. It is an unfortunate fact of life that there are people around who will go to any lengths to protect themselves and keep themselves away from the long arm of the law and particularly where in fact they are already suspected of something like murder or kidnapping, you can reasonably think that they might not hesitate to do it again. That is really the sort of situation that we are attempting to deal with.

Mr Deputy Speaker, I do not think I have any more to add at this stage but will be interested to hear the minister's response to those particular matters.

Mr LLEWELLYN (Lyons - Minister for Police and Public Safety) - Mr Deputy Speaker, just to clear up one or two points, for a start, and in particular as outlined by the member for Lyons, Mr Hidding, where he was mentioning that some time in the future he might take action with regard to other types of witnesses and other circumstances and so on. He made mention of the fact that the bill provided only for the provision of witnesses in specific cases and that I had mentioned that in my speech on the second reading. Looking back over the speech, the word 'only' is actually mentioned in the speech and is probably not a word that is well chosen in the second reading speech. So for the sake of the second reading speech, can I clear that matter up now and say that that word probably should have been 'primarily' made available in proceedings of a major nature, because any circumstance is covered in the bill itself.

Mr Hidding - That's right, wherever their life is in danger.

Mr LLEWELLYN - That is right. So people can actually be put into a program for other reasons and situations other than those that have actually been outlined in my second reading speech. I just wanted to put that on record because records now are matters that can be brought before the court as a means of determining the intent of the legislation.

Having said that, of course I think a lot of the issues that the Deputy Leader of the Opposition had to say can actually be encompassed under the witness protection legislation. So I am not sure he needs to take that into account when he is looking at proposing whatever legislation he is proposing in the future.

In regard to the comments that were made by the member for Denison, Ms Putt, can I say that they are matters that have been considered in drafting the legislation. In looking at it, in relation to legislation across the nation, as I mentioned in the second reading speech, there is only one jurisdiction that will not have witness protection legislation after we complete and pass it through this Chamber and that is the Northern Territory. So similar legislation encompasses the whole of the Commonwealth and it will mean that we are able to provide a new identity to a person and they need not be positioned somewhere else in the State but they could be anywhere in the Commonwealth of Australia. This protection bill will enable us to provide that anywhere right throughout the Commonwealth, so that is there.

In regard to the issue of the legislation and how it operates in each of the other States, the matter of whether or not the Commissioner of Police is the only person who is involved in actually determining these things, there is a balance there and the member actually I think recognised that in what she is saying as well.

Ms Putt - Yes, I'm not saying I know the answer, I just know the question.

Mr LLEWELLYN - The balance between minimising the number of people who are involved in the process for obvious reasons and sharing it with other people for other reasons. In other jurisdictions - for instance, in New South Wales the Commissioner of Police is the only person, so the legislation models what in this regard happens in New South Wales, in Victoria, in the Australian Federal Police, in South Australia, in Western Australia and with regard to the National Crime Authority they operate through the Australian Federal Police and that is the commissioner also in that case. The only State that has something that is different is Queensland and the chair of the Criminal Justice Commission is the person who actually makes the decision there. But it is only the one person as far as I understand - we are a little hazy about that, the Queensland situation. But in all the other cases it is the Commissioner of Police alone so we are not breaking new ground on that particular matter.

That is not to say that someone else might not be aware of the issue, particularly if it is a matter that is related to an issue coming before the court and is a serious matter. The Director of Public Prosecution may be aware of the circumstances behind these matters through the normal course of his duty associated with it. But in all other circumstances the Commissioner of Police is the person who has that role in all the other jurisdictions and that is what we are intending here.

I think that probably was an issue that Ms MacGregor might have been wanting to raise because I did hear also that radio broadcast but on balance I think it really needs to happen in the way that we are suggesting here. But you might like to explore it further if we go into Committee. I commend the bill to the House.

Bill read the second time.