Protect me not?

By Jessica Solari

Australia’s relationship with refugees is reported on heavily in the media. These reports usually concern Australia’s treatment of refugees arriving on our shores. In an interesting turn of events, however, attention has been directed towards Steven Utah, an Australian citizen who sought asylum in Canada. Recent revelations concerning a September 2017 decision of Canada’s Immigration and Refugee Board (IRB), to grant refugee status to Utah sparked public discussion of Australia’s witness protection programs.

Utah claimed refugee status due to threats against his life that arose as a direct result of his status as an informant to the Australian Crime Commission. Utah provided information to the ACC during its investigation into outlaw bikie gangs. The ACC outed Utah in a media release in 2006, after which murder contracts were placed on his life. The decision of Canada’s IRB is believed to be the first internationally to grant refugee status to an Australian and was described by the ANU’s Matthew Zagor as ‘unprecedented’.

The decision raises questions about the efficacy of witness protection programs in Australia. The IRB stated that Australian authorities failed to offer Utah adequate protection (it is unclear whether he was under formal witness protection), as part of a ‘broader pattern [of] corruption, ineptitude and structural difficulties’. Corruption is an historically significant Australian policing issue – one could point to the Fitzgerald Inquiry, which involved a wide-ranging investigation into police corruption in Queensland and resulted in the imprisonment of four ministers. Ineptitude is more difficult to measure and a politically contentious topic, while assessing any structural difficulties would involve a large-scale consideration of witness protection programs across Australia.

It is worth noting that the problems highlighted by the IRB arise at least in part from the fact that Australia lacks a cohesive approach to witness protection. Given the division of policing powers between federal and state agencies, it is not surprising that structural difficulties in witness protection arise.

At a federal level, witness protection is governed by the Witness Protection Act 1994. The Australian Federal Police Commissioner has sole responsibility for deciding whether to place a witness in the National Witness Protection Program. In reaching a decision, the Commissioner must have regard to seven criteria listed under section 8(3) of the Witness Protection Act. These criteria focus on: the criminal history of the witness, the witness’ suitability to be placed in the program, the nature of the offence which they are a witness to, the relevance of the evidence the witness can give, the availability of alternative and viable methods of protection, the perceived danger to the witness, and the nature of the witness’ relationships with other witnesses in the witness protection program.

The use of the word ‘must’ in section 8(3) confers an obligation on the Commissioner to consider the criteria in reaching his decision. The Commissioner therefore – although having discretion in the making of their final decision – does not have discretion as to whether to consider these criteria.

However, unlike most administrative processes, it is unclear whether a failure to consider the criteria in section 8(3) is reviewable, creating a structural issue akin to those referred to by the IRB. The Australian Federal Police’s 2011-2012 Witness Protection Annual Report states that decisions made in relation to the National Witness Protection Program are not subject to review under the Administrative Decisions (Judicial Review) Act 1997, meaning that such determinations are not subject to judicial review. Review of these decisions is carried out differently between jurisdictions – for example, in Tasmania, a decision by the Police Commissioner may be reviewed by an ombudsman, while in NSW the Commissioner’s decision can be reviewed by the Law Enforcement Conduct Commission.  The Report does not state which alternative avenues for review – that is, administrative review – are available. A possible rationale for this lack of review would be the necessity for secrecy in witness protection programs. However, a lack of review processes could point to a potential structural deficiency in the National Witness Protection Program.

At a state level, most witness protection programs mirror the National Witness Protection Programs, with some distinguishing features. For example, New South Wales, Victoria, South Australia, Western Australia, the Northern Territory contain provisions equivalent section 8(3) in their own witness protection legislation.

However, the ACT does specify that a decision made ‘must be in accordance with’ section 8. Queensland offers comprehensive assessment criteria, borrowing on what the Federal Act offers, and expanding on it to include information provided to the relevant body. Tasmania leaves any decisions to the sole discretion of the Police Commissioner.

Queensland’s Witness Protection Program is the nation’s wild card. It is governed by an independent commission, with a chairperson – as opposed to a Police Commissioner or Chief of Police – at the helm. Thus, Queensland’s witness protection scheme functions differently to the majority of other such programs in Australia, serving as an example of how the inconsistencies of our witness protection programs are exacerbated by the federal system.

These structural differences in how Australia’s various witness protection programs are run may not be the same structural difficulties outlined in the IRB’s decision. Yet, they do point to a lack of cohesion between these programs, which represent a key protective strategy for witnesses, whose evidence is extremely valuable to law enforcement bodies.

This lack of cohesion results in a potentially vulnerable witness protection system, in which witnesses who are under threat – such as Steven Utah – are left vulnerable. Fear of insufficient protection upon providing evidence may also leave potential witnesses reticent when it comes to assisting law enforcement. When this occurs, the system fails.

The fact that refugee status was granted to Steven Utah suggests that reform of Australia’s witness protection systems is needed. Such reform could involve increasing cohesion between the various state and federal approaches through uniform legislation, establishing an independent statutory body to regulate the practice and approach of witness protection programs, or introducing better review procedures for decisions pertaining to witness protection.

Although it is not apparent which of these reforms would be the most effective, what is clear is that it is quite embarrassing (and anomalous) to have a citizen of a first-world country with a quality of life that is the envy of the world to be granted refugee status overseas.