EVIDENCE (IDENTIFICATION) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 29 November 2012.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (17:15): The opposition has reviewed the Evidence (Identification) Amendment Bill 2012 and, with great regret, we noted that it is identical to the one the government attempted to persuade us to support back in 2011. I do not think there have been any changes at all, not even cosmetic, except for a date. When will the Attorney-General ever learn?

Quite simply, this is a bill which, as I say, replicates an attempt back in 2011 by the government to change the rules in respect of suspect identification in criminal investigations. The bill specifically removes the common law judicial preference for in-person suspect line-up parades in suspected criminal offences over other forms of suspect identification.

The government was keen to pursue some advice from the police department about how it could make it simpler, cheaper and easier to catch criminals without really considering whether that would ultimately produce the most effective process to catch the real criminals. It always sounds attractive, especially for governments that want to save money, to look at things that are going to make any process for which they are responsible (namely, catching criminals) cheaper, quicker and more efficient. All those things are great but, if you compromise the quality of what is being proposed, then it raises some concerns.

Over the past 100 years we have had criminal-detection methods and activities which have developed a practice of effectively and fairly identifying criminals in line-ups. That has resulted in there being a common law preference by judges accepting that, if we want to identify a suspect, it is best to put them in a line-up of real people rather than in a background of others or rather than having a photographic line-up. It is important for responsible attorneys-general and governments to resist the temptation to go to the cheap, easy and quick option if it does not produce better results.

Prior to the 2010 election, the Attorney-General, the now newly elected Speaker, promised the people of South Australia at that election that the police practice would change. The police, of course, had for a long time been saying, 'Look, it isn't just a question of it being cheaper to use photographs instead of real people, it's a lot quicker'. It is sometimes hard to find people with similar looks so that it makes it a fair line-up. It is more effective if they all look the same. For example, if the member for Elder was a suspect in a criminal activity it might be difficult to find people who are of a similar shape, size, colour, state of baldness, all those sorts of things, sufficient to provide a line-up that would not produce a prejudicial outcome that ultimately might get thrown out of court.

There would be no point in lining him up with people who all look like the member for Mitchell, for example, who looks quite different. He is much more handsome, he has much more hair, he is a different shape, and it may be that it would ultimately colour the reliability of the evidence sufficient that it would not be useful to a court and the prosecutors of the day may fail in their application as a result of that not being accepted. So, we have to look fairly carefully at what the police were asking for. They said, 'We accept that there are some certain standards that have to be imposed if you are going to use the photograph option' (the photo line-ups), to make sure that they are all of a similar size, that they are all colour or black and white, that there would be all of the same qualifications and standards that would be imposed with the line-up.

Coupled with that was the fact that the police were saying, 'Look, it's just so difficult to go along and find these people sufficient to be similar', etc.: all males, or all females, or all people that have a darker skin, or all people who have different features. It is also not very helpful when it comes to the memory of the person who is going to be doing the identification. In other words, the quicker we can get people in front of the process, whether it is the line-up or the photographs, the better chance they will have to remember, or less time to forget, the detail so that the identification can be more effective.

These are all things that were put to the government, but clearly in 2010 it put out this proposal. There was quite a lot of discussion at the time about the reliability of whether that should occur. I should add here that there were academics, including Professor Neil Brewer, and he was one that we had long debates on in the first round of discussions in the 2011 bill as someone who had said, 'Well look, when you look at all of the literature and of course the common law as it stands there's a pretty good case to say, "Well look, technology has changed"'.

Irrespective of the police saying that this is a cheaper option for us and it would save a few of our resources, it would be quicker, and all of those things we have just discussed, there is some merit and some support amongst the academics to say that it is really not so bad after all, provided that you comply with certain standards and that certain rules apply, and the quality control of that is critical. I am paraphrasing the position but there is quite clearly a situation where if you are going to remove that judicial preference that we look to securing certain quality standards, as I have said.

What happened, quite simply, with this legislation is that when the 2011 bill went up to the Legislative Council, the Legislative Council said no. They said that the bill that the government had then proposed was driven by cost savings and did not have sufficient regard to the quality and standards that were to be imposed on the evidence that was collected in using the options alternative to the personal line-ups. The Legislative Council said no, and it defeated the bill.

There were long debates in that house as well, and I make it absolutely clear at this point that throughout those debates the opposition, having reviewed the academic literature and looked at the stakeholders' comments on this, said, 'Yes, we see that there is some merit in removing this common law judicial preference and giving an opportunity to be able to more often use the photographic option,' which is really what we are talking about here, as distinct from line-ups with others as a background as distinct from a personal line-up. We said that this was meritorious, provided we had some assurance of the qualities.

That was the opposition's position, and we thought that that was a way of acceding, really, to all of the benefits that the police had pointed out, that the government had swept up within their election promise and brought into the bill, and this would be a way of making sure that we had good new law with all of the assurances that were necessary to go with it. After the bill was defeated, the government took no other action in presenting us with a bill including the quality assurances, for example, to ensure that there be video taping of the identification process when this option was used. No: the government did not take that up.

The opposition, then, through the Hon. Stephen Wade, drafted a private members' bill to try to incorporate this initiative with the quality assurance; and what happened? The government just ignored that completely, even though there had been stakeholder interest and there had been concerns raised. The bill was proposed with the assurances that go with it, yet the government decided they would not even sit down and talk about that. They would not even say, 'Yes, this has some merit. We will look at that. We are keen to advance this.' They treat this parliament with such contempt as to come back here at the end of 2012 and ask us to debate exactly the same bill—

The Hon. J.R. RAU: Mr Deputy Speaker, point of order. I am a little bit confused. I thought we were on the honourable member's speech No. 21 but she seems to have got on to speech No. 34, which is the one where we are treating her with contempt. I am just wondering if you can give us a pointer when you are moving from one of the familiar themes into the next, because I get a bit confused, Mr Deputy Speaker.

Ms CHAPMAN: So what we have now is, instead of having gone through all that process, the opposition offers a bill with the quality assurances which has had some very favourable feedback from the stakeholders involved to support that approach. What do we have? We have the insult as a parliament of the government coming back with the same Attorney—not even a new one—saying he will give it a fight. The same Attorney comes back with the same bill—exactly the same, except for the date. One number was changed.

The Hon. P.F. Conlon: I thought I would have learned something by now.

Ms CHAPMAN: Are you going to be speaking on this bill?

The Hon. P.F. Conlon: If you like.

Ms CHAPMAN: I do not know what has happened with the Attorney. I think what happened in the parliament was we expected that we would have a whole new regime when the former attorney went and that the new Attorney might have felt that he was bound to introduce and follow on with the election commitments that the previous attorney had made—some of them were ridiculous ideas—thinking, 'Well, perhaps we had better do it. We are criticised if we don't, so we had better throw them up.' Well, he threw them up and in this instance, the parliament said, 'No, this is not going to work. We're moving from one process to another and if you do that, based on cost saving rather than on a meritorious advance in the investigation of cases that can safely be relied on in courts, then we will not support it,' and that is exactly what they said.

The same Attorney—the one who we thought was going to be a new era of change here in the parliament—has done us the ultimate insult by throwing back to us within months the same bill. A time lapse is required; I accept that. We do not have any legal point to try to stop it being dealt with in an abridged time. It has qualified in the time to bring it back, but please do not insult us—

The Hon. P.F. Conlon interjecting:

Ms CHAPMAN: Haven't you been here? I've told you right at the beginning.

The Hon. P.F. Conlon interjecting:

Ms CHAPMAN: Wakey-wakey! The position remains that, in those circumstances, the opposition remains opposed to the bill and secondly, remains open to sit down and talk about amendments that will necessarily protect the integrity of a change with adequate quality standards. We will do that in the interests of ensuring that this idea is actually able to be concluded.

It has been one where there have been very significant academic diverse views over a number of years but the Attorney was right about one thing: bringing this whole approach to the parliament to change the judicial preference rules and to be able to come to the modern era. There is no question about that and he would not be criticised for doing that, but to spearhead an area of reform based on cost and some efficiency for government, we did not agree with the way this started and neither did the Legislative Council. They made it very clear that they were not going to accept that but when you look at the cross academic contribution that has been made, there is some merit in doing it, but it must be with those safeguards.

My understanding is that, in at least one of the briefings I had where a representative from the police force was present—and I cannot remember now whether it was the commissioner or one of his senior personnel—they agreed that there were circumstances where the photo line-up could have problems. They were continuing to develop certain practices themselves to ensure the integrity, validity and ultimate survival of the results of the photo line-ups in the evidence in the court subsequently. They were working on that. They understood the importance of doing that and yet the government—or at least the Attorney—seems to be impenetrable in the understanding that there is a reason for this.

It is not just to be difficult. It is not just because we want to cause trouble to the Attorney. We want to make it better but it seems he just refuses to listen to anything else other than what he wants to do in a circumstance where everyone around him actually wants to help. I just find it extremely disappointing but find that, as a result of his intransigence, we are forced to oppose this bill and, whilst it will pass this house given the numbers the government has, we are extremely disappointed in the approach and attitude of the Attorney on this matter.

The Hon. R.B. SUCH (Fisher) (17:34): My reading of this bill leads me to the conclusion that it is a positive measure. I did not hear the contribution of the member for Bragg. Obviously the opposition has some concerns about this, but to me it seems a logical development, taking into account modern technology. So I am surprised that the opposition would oppose it. I will be interested to see what happens in committee but, on the surface, my reading of it is that it seems quite a sensible, progressive measure.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (17:34): I thank the member for Fisher for his erudite contribution; as always, right on the money. He does not muck round, he is straight to the point and, as usual, he has it dead right. I thank you, member for Fisher. Something that I think is true in life—at least it is in my experience—is that if something is complete rubbish, repeating it over and over again does not change its essential nature, which is that it is complete rubbish.

I commend that thought to the member for Bragg, because that is what was going through my head as I was listening to the honourable member's contribution. I do give the honourable member credit, though; the sheer brazenness of her contribution today—even in the fairly high level brazenness in which she operates—hit new peaks. She was into the Himalayan zone of brazenness on this occasion.

I will just put on the record what actually happened in relation to this legislation, and I will put it in short form. The police say to the government, 'Look, we've got all sorts of reasons why we think we need to deal with this common law presumption about identification evidence.' The government says, as a matter of policy, 'Yes, we accept that.' The government goes to an election with part of its manifesto that it will do this. The government wins the election. As Attorney, in due course I bring forward legislation to honour the commitment given to the people before the 2010 election that this step would be taken.

If my memory serves me correctly—and I am sure those who advise me will correct me if this is wrong—what happened was that this was opposed in here, not amended in here, because the opposition's tactics throughout the term of this parliament has been to never offer the government, certainly not the Attorney-General, the courtesy of seeing what its amendments are in this chamber. That would provide the Attorney with the unfair opportunity of actually being able to respond specifically to what it was saying, and that would not do because someone in the upper house might accidentally read it and come to a different conclusion. That would be a terrible shame.

So we did not get any amendments put in here, none. As I recall, what we did get was blanket opposition in the upper house. Not 'Oh well, great idea, Attorney, but can we just tweak it here or can we move it there or can we fiddle with something here? Let's polish it up.' There was none of that; just, 'No, vote it down.' So down it went, the proposal which is, evidently, laudable. There was not one suggestion as to how we could improve it, not one moment of constructive dialogue, not one.

There it languished, like Gollum's ring at the bottom of the pond, for what seemed like millennia but actually turned out to be about a year. Then the Hon. Stephen Wade and the Hon. Isobel Redmond—again, going back to Lord of the Rings—are there fishing, and the fish takes them into the water. They go down and, instead of coming up with the fish, they have the ring again. My goodness!

Do you now why they picked up the ring again, Mr Deputy Speaker? It was because the Police Association—and I have to be careful how I put this—was basically tearing them to shreds over their complete lack of support for anything the government put into this place that was of any value to the police. Let's remember, they had argued about the criminal intelligence legislation that the police wanted through; they opposed it. They argued about police line-ups, which the police wanted through; they opposed it. It was terrible, terrible.

Everything that was put up by the police they opposed, even though I spoke to the police. I said to the police, 'Please go and talk to these people and explain to them what your point is.' I believe Mr Harrison spent many delightful hours in the company of the member for Bragg and the Hon. Stephen Wade explaining all sorts of things, but to no avail—absolutely to no avail.

What happened then (and again my memory may be slightly impaired) went something like this. The then leader of the opposition was invited to give a talk to the Police Association at one of their little lunchtime soirees. As the lunchtime soiree drew closer in time, the then leader of the opposition looked at the ring in her hand and thought, 'Ooh, goodness, what am I going to do with this? Aah, I've got this problem. When I go in there I might be asked, "Why have you, Leader of the Opposition, frustrated every single request we, the police, have made of the government for the last two years? Why have you done everything you can to stop it?"' They flailed around and flailed around and eventually the light went on—bing! 'That was a good idea about photo evidence.' The leader of the opposition then walked into the Police Association show and said, 'I have an announcement, ladies and gentlemen—'

Mr Pengilly: The former leader.

The Hon. J.R. RAU: Sorry, the former leader. Yes, I am sorry; correction accepted, member for Finniss. She went in and said, 'Ladies and gentlemen of the police force, I have news for you. I bring glad tidings, ladies and gentlemen of the police force. Do you know what we're going to do for you? We think you should be able to use photo ID.' 'Ooh,' said the hushed room. The cameras clicked, shorthand people took notes, and it was a moment of great significance. In fact, in Australian terms, it was like Roosevelt addressing the Congress after Pearl Harbor. That is the level of significance this had.

What happened then was that the Hon. Stephen Wade issued a press release—hark the herald!—stating, 'I am going to support photo IDs.' The press release—I guess in a backhanded compliment to me—basically plagiarised my press release of the year before and had his name on the top of it. In fact, if I had them both here I could read the passages out. The main difference is that one of them has the smiling dial of the man of justice, Stephen Wade, who has now incorporated the scales of justice with the woman with the blindfold as part of his logo. It is a big statement. All I have is just my name and that is it.

Members interjecting:

The Hon. J.R. RAU: A bit understated. He then plagiarised my press release of the year before and fired it off, saying, 'Look at me, look at me. I am supporting photo IDs.' I picked this up and thought, 'You've got to be joking. Has the man suddenly developed a sense of humour? He has been concealing it from me for three years, and here it is. He is actually quite a funny chap.' That is how we have come to this juncture where, having been alerted by reason of my press release being regurgitated back to me under the heading of Mr Stephen Wade, I thought now might be a good time for me to reintroduce my bill, which I have done.

The funny thing about it—and there are lots of funny things about this, aren't there? There are so many funny things about this, I do not know where to start and finish really—is that, even though they have had about three years to think about it (actually, they have had since the 2010 election, but in terms of the specific words they have had a couple of years), and even though they have been down the road of total opposition and then done a complete U-turn and come back with, 'This is my idea,' I have a wager that I will offer to anybody here, that is, when we go into committee on this bill there is not going to be any amendment tabled.

These are the people who have been ruminating over this for a couple of years. These are the people who know what the refinements are that are required to make this palatable, and who make the interesting point—which I think should be carved in basalt with gold lettering—that the Legislative Council is not interested in the efficiency of government. Well, there is a truism if I have ever heard one.

I look forward to seeing, after two years of rumination, the actual amendments that the opposition say need to be made to the bill in order to make it safe. It is not as if this bill is a lengthy exercise; it is actually only about 60 words. So, even if they wanted to adjust it a lot, it should not have taken them long. There is the history of it. It is not quite exactly the same as offered by the member for Bragg, but occasionally we see things from a different perspective. I am very interested to see what the amendments are.

Bill read a second time.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (17:46): I move:

That this bill now be read a third time.

Bill read a third time and passed.