Australian Capital Territory Numbered Acts Australian Capital Territory Numbered Acts(1) This section applies if a witness identity protection certificate for an operative in a relevant proceeding is filed in a court dealing with the proceeding.
(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 witness a question that may reveal the operative's identity or where the operative lives; or
(ii) for a person involved in the proceeding to make a statement that reveals, or may reveal, the operative's identity or where the operative lives; or
(b) for an order requiring a witness to answer a question, give evidence or provide information that reveals, or may reveal, the operative's identity or where the operative lives.
(3) The court may—
(a) give leave for a person to do anything mentioned in subsection (2) (a); or
(b) make an order requiring a witness to do anything mentioned in subsection (2) (b).
(4) However, the court must not give leave or make an order under subsection (3) unless satisfied that—
(a) there is evidence that, if accepted, would substantially challenge the operative's credibility; and
(b) it would be impractical to properly test the operative's credibility without disclosing, or risking disclosure of, the operative's identity or where the operative lives; and
(c) it is in the interests of justice for the operative's credibility to be tested.
(5) If there is a jury in the proceeding, the application must be heard in the absence of the jury.
(6) 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 the court gives leave or makes an order under subsection (3)—the question is asked and answered, the statement is made, the evidence is given or the information is provided.
(7) The court must make an order suppressing the publication of anything said when—
(a) the application is made; and
(b) if the court gives leave or makes an order under subsection (3)—the question is asked and answered, the statement is made, the evidence is given or the information is provided.
(8) Subsection (7) does not prevent a transcript of court proceedings being taken, but the court may make an order about dealing with the transcript, including an order suppressing its publication.
(9) The court may make any other order it considers appropriate to prevent disclosure of the operative's identity or where the operative lives.
(10) A person commits an offence if—
(a) an order has been made under subsection (7), (8) or (9); and
(b) the person is reckless about whether the order has been made; and
(c) the person contravenes the order.
Maximum penalty: imprisonment for 2 years.
Note The fault element of recklessness can be satisfied by proof of intention, knowledge or recklessness (see Criminal Code, s 20 (4)).
(11) Subsection (10) does not limit the court's power to punish for contempt.
(12) In this section:
"person involved in the proceeding"—see section 14 (6).