STATUTES AMENDMENT (CRIMINAL INTELLIGENCE) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 23 November 2010.)

The Hon. S.G. WADE (15:34): I rise to speak on the Statutes Amendment (Criminal Intelligence) Bill 2010 on behalf of the Liberal opposition. It is disappointing that yet again the government is rushing through key legislation. We are told that the drop-dead date is 4 December, but the bill was tabled only on 27 October. We have been given merely a month to digest a bill dealing with very significant matters. The bill responds to the High Court judgment in the K-Generation case, which was handed down on 2 February 2009, some 22 months (almost two years) ago.

The government's failure to progress this matter and to engage other parties in this parliament is particularly disappointing, given the new Attorney-General's assurances that he would take a distinctively consultative approach. I am disappointed the government did not take the opportunity to bring this matter before the parliament earlier.

The government says that they were holding off on the bill to implement K-Generation, awaiting the Totani judgement, in anticipation of any changes to the Serious and Organised Crime (Control) Act necessitated by a High Court judgement in Totani which could be dealt with at the same time. However, I submit that that argument lacks credibility. Once the government was called back to the High Court in the Totani case in June, waiting for the Totani judgment had to be at the expense of the time available to this parliament to deal with this bill.

Further, the government is miscommunicating on the bill. I understand that government officers have been telling legal stakeholders not to worry about this bill, that it is routine. We do not agree that this bill is routine and, if it was, the government should have done the parliament the courtesy of an early briefing on the issue, even before the bill was ready for tabling.

One of my concerns with this bill, which I will discuss further later, is that the government may well be rushing to implement a regime which may yet be found to be invalid. There were comments in the Totani judgment which suggest that the court may be more comfortable with some of the words we are getting rid of rather than the words we are keeping. After the government's self-indulgence in taking the Supreme Court decision in Totani on appeal to the High Court, the opposition wants to avoid the government wasting even more money on legal disputation.

As we go through consideration of this bill today, I urge the council to hold the government to account for the shortness of the time. It is the government which failed to bring in the bill earlier; it is the government which has chosen not to sit the optional week of parliament. The government must not be allowed to use a crisis of its own making to avoid proper scrutiny and due consideration of legislation.

I thank the government for the briefings by officers and for the support from both the Attorney-General and his office. In particular, I acknowledge the briefings we received from Matthew Goode, of the Attorney-General's Department; Assistant Commissioner Tony Harrison, of SA Police; and Debbie De Palma, a legal officer of the Crown Solicitor's Office working with the police. I have a high regard for all three officers, and I found their briefings informative and quality.

The opposition is deeply grateful for and respectful of the hard work of our police in supporting the safety of our communities. Their work is often dangerous, and we put a high priority on making sure that police have access to the tools they need to do their job. That is why we called for the provision of tasers to our police on the streets in the face of continued mocking from this government. One of the tools the police need is appropriate police powers—police powers managed within a consistent framework. A sound framework supported by law and accountability will help the police do their job. In particular, police powers in a consistent framework support public confidence in the police and the broader justice system.

Since 2003, the Rann government has introduced a series of pieces of legislation which have permitted secret evidence, which in these bills is called 'criminal intelligence'. It has been particularly applied in licensing, regulatory and court processes and, according to the minister's second reading explanation on this bill, the government has been using this tool in the name of disrupting the activities of organised crime. After seven years, the opposition thinks it is time for a stocktake to look at what impact the laws have had, the benefits and the detriments.

In coming to this bill and the discussions around it, the opposition is not responding to any known abuse of the criminal intelligence powers. South Australia is extremely fortunate to have a world-class police force, and the evidence made available to us is that criminal intelligence is used sparingly and cautiously. But a world-class police force needs a world-class legal regime supporting their operations. Criminal intelligence, after all, represents both an opportunity and a risk to both policing and the justice system.

The use of criminal intelligence significantly increases risks in a range of areas. Criminal intelligence increases the risk of miscarriages of justice. Without the subject person's direct awareness of the allegations against them, there is a real risk that they will not be able to rebut rebuttable assertions and, therefore, miscarriages of justice ensue. Criminal intelligence increases the risk of corruption. For example, a rival (commercial or otherwise) can offer hearsay to damage another party without them being able to defend themselves against malicious claims.

Thirdly, criminal intelligence increases the risk of political misuse. Fourthly, criminal intelligence can undermine standards of police investigation. There is a risk that police will become less diligent in their investigative work and rely on criminal intelligence as a short cut to robust evidence. Criminal intelligence can also undermine public trust in the justice system. Open courts and open justice support public confidence in both of those processes.

It is the opposition's view that special powers require special accountability. In this regard, we believe that the Rann government has failed to provide both an adequate focus and an adequate level of accountability. In the amendments that we will move to this bill we seek to improve both focus and accountability.

In relation to focus, it is a fundamental principle of the rule of English law that a person has the right to know the case against them. It is a right which should only be waived in exceptional circumstances. The government asserts that the development of serious and organised crime in this state means that the police need special powers such as criminal intelligence. In his second reading speech on this bill, the Attorney-General said:

The development of criminal intelligence provisions in a number of acts was directed to the destruction of the activities of organised crime.

In that context, the Liberal opposition will move to amend the bill to make that focus clear. At this stage we assume that the police do need the tool of criminal intelligence, but we want to minimise the risks by focusing the tool on the fight against organised crime. In our view, the fight will be enhanced by giving the police a sniper rifle rather than a shotgun. We have tabled amendments which we consider will focus the tool.

I stress to the council that we have made it clear to the government and other members of this house that we are not wedded to a particular form of words to achieve a focus. We are disappointed that, in spite of our best efforts to engage the government in improving the words, we were left to our own devices. We have done the best we can but we still remain open, ever hopeful, that the government (or for that matter any other member of this house) might help this legislation be even better.

I appreciate the opportunity to discuss our amendments with Assistant Commissioner Harrison and Debbie De Palma, and I share their concerns that the amendments need to be workable. Since we met with the assistant commissioner and Debbie De Palma, we have significantly redrafted what we understand is the key phrase which is how we define 'serious and organised crime'. We certainly believe that those provisions are workable.

We have changed our amendments to make it doubly clear that we do not consider that focusing this legislation should require that a person be proved to be a member of a proved organisation. The Rann Labor government has a record of ramming ill-considered laws through the parliament, and the South Australian Liberals will work to balance the needs of community safety and the rights of individuals.

Secondly, we seek a change in the practice in terms of accountability. Recent briefings on criminal intelligence have shown a lack of checks and balances. In our view, there should be more guidelines for officers in the use of criminal intelligence. There should be an improvement in record-keeping and there should be an improvement in reporting and review.

The former attorney-general, Mr Atkinson, labelled the Serious and Organised Crime (Control) Act 2008 as draconian and the Attorney-General Rau has called criminal intelligence 'a breach of procedural fairness and natural justice'. Despite these admissions, the Rann government has neglected to ensure that strong checks and balances are in place. Given the government's failure to properly monitor the use of secret evidence, we cannot be sure that it is doing more harm than good.

The fight against organised crime is all about making our communities safer. However, to support ongoing public confidence these laws need to protect rights in the process. That is why, in this bill, we are moving for an independent review and ongoing accountability. I now turn to the detail of the bill. The Statutes Amendment (Criminal Intelligence) Bill 2010 was introduced into the House of Assembly on 27 October.

The Rann government has introduced a range of bills since 2003 providing for the use of evidence which cannot be challenged in judicial or administrative proceedings, commonly referred to as 'criminal intelligence'. Broadly, criminal intelligence is information which is critical to a decision but which cannot be made public or, in particular, disclosed to the individual to whom it related because to do so could prejudice criminal investigations. Secondly, it could enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement or, thirdly, endanger a person's life or physical safety.

Once information has been declared to be criminal intelligence, the information is accepted as evidence in a proceeding without being first made available to the other parties to the proceedings to be able to test the reliability of the evidence. A person applying for a licence or a party to legal proceedings is denied the right to know the case and to know of and respond to evidence that is prejudicial to their application or their case. The government has acknowledged that this is a breach of procedural fairness and natural justice.

There is a range of acts which include provision for criminal intelligence. To overview them briefly, they are the Serious and Organised Crime Control Act 2008, the Serious and Organised Crime (Unexplained Wealth) Act 2009, the Summary Offences Act 1953 which deals with anti-fortification, the Casino Act, the Firearms Act, the Gaming Machines Act, the Hydroponics Industry Control Act; the Liquor Licensing Act and the Security and Investment Agents Act. In 2009 the government tabled the Second-Hand Goods Bill 2009, and that included provision for the use of criminal intelligence but it was not proceeded with.

The Summary Offences (Weapons Amendment) Bill 2010, which is currently before this council, also proposes criminal intelligence. Clearly, the government wants to incrementally and persistently increase the use of criminal intelligence. The statutory formulation of criminal intelligence has evolved over a range of bills, such that there are, in broad terms, three generations of provisions.

The first is what I call the original set which was used in the Summary Offences Act re fortification, secondly, what I call the K-Generation set of formulations, and, thirdly, the Kourakis set, a revised formulation of criminal intelligence recommended by the then Solicitor-General to make the provisions more amenable to High Court approval. In the end, the second generation of criminal intelligence was upheld by the High Court in the K-Generation case.

As indicated, that case was brought down at the beginning of 2009. At that stage, the government decided that, to reduce the risk of legal challenge, all the criminal intelligence formulations should be made consistent with the K-Generation model. Bills drafted subsequent to the decision have been drafted to reflect the second generation model; however, some third generation models had already passed the parliament and were in the process of being proclaimed.

The government's response was to only partially proclaim them, not proclaiming what I call the third generation elements. Under section 7(5) of the Acts Interpretation Act 1914, the third generation elements of these bills would be automatically proclaimed with the elapse of two years (which would be 4 December 2010) and hence the deadline that this council faces. All other acts amended by this bill, I understand, are already fully proclaimed.

The government recently defended the Serious and Organised Crime Control Act 2008 in the Totani case. The judgement of the High Court was a strong one, with a six to one judgement, and it struck down a key clause of the SOCC Act. While the court focused on the matters before it, there was a range of obiter dicta statements that related to criminal intelligence. For example, favourable remarks were made about the formulation of criminal intelligence in SOCCA legislation in contrast to the formulation in K-Generation.

Whilst there are some elements of the third generation model which are likely to be held to be contrary to the K-Generation judgement, some elements may be preferred. So, I am not convinced that the government's latest formulation is the one that will be most amenable to the High Court in their challenge, and the parliament should be realistic in planning for challenges.

This legislation and the Serious and Organised Crime (Control) Act—whether it is the current act as amended or a new act—are likely to face a series of challenges into the future. After all, it is only a matter of weeks since we received the judgement of the High Court in the Totani case. The High Court is scheduled to commence hearing the Wanhou case, a challenge to the New South Wales bikies law, in the next week or so.

The Supreme Court of South Australia has already started hearing another appeal by Mr Totani against another aspect of the SOCCA legislation. It is clear that the millions of dollars that the government has spent on the anti-association laws has been money that may well have been better spent on more direct policing of criminal organisations. That is an assessment that we, as a parliament, and we, as an alternative government, need to consider in the weeks and months ahead, when we consider what priority and what level of investment we will be putting into anti-association laws in comparison with other elements of the crime-fighting tool kit.

Given a 6:1 ruling from the High Court and another wave of legal challenges on the way, we need to stop and soberly assess where we can best get value for money in protecting our communities from crime. For our part, the SA Liberals are actively considering all future options.

The government makes much of the fact that other states have followed South Australia in enacting legislation to deal with serious and organised crime, including provisions to use criminal intelligence, but I think it is worth this council noting that no other state has followed South Australia in the use of criminal intelligence beyond the SOCCA-type act. So, I ask the parliament: if there is no other state or territory that needs to use criminal intelligence in its general criminal laws, licensing laws or regulatory laws, why does South Australia need to?

Even if K-Generation reflects the law going forward, the Liberal opposition is concerned that police and court policy and practice may not fully reflect the judgements of the courts and, as such, may fail to properly protect the rights of our citizens and also leave those proceedings subject to challenge.

To put it bluntly, the High Court's endorsement of the statutory formulation in the K-Generation case was given on the basis of a range of assumptions about how criminal intelligence would be handled by the courts. We are concerned that the state may be open to litigation if proper court processes are not put in place to ensure that the judgement of the court is respected. In this context, I would like to quote from correspondence that the opposition has received on this bill from the Law Society:

Integral to the validity of the legislation…was the fact that the courts (Licensing and Supreme) could determine (1) whether the Police Commissioner's classification of information as criminal intelligence fell within the statutory definition of 'criminal intelligence'; (2) what weight to attach to the criminal intelligence; (3) the necessary steps to maintain confidentiality, including the ability to disclose to whomever it considered appropriate the whole, a part or a summary of the criminal intelligence with appropriate conditions; and (4) whether it will afford an opportunity to the aggrieved party to be heard in relation to the criminal intelligence.

The High Court arrived at such a view after interpreting the legislation by a well-established and conservative principle of interpretation that statutes are construed so that they do not encroach upon fundamental rights and freedoms at common law. Specifically, the legislation was interpreted to give effect to the rule of law that courts sit in public and accord procedural fairness.

It was by no means clear on the face of the relevant provisions of the Liquor Licensing Act that the safeguards (1) to (4) mentioned above were contained in the Act, even less so to a lay person. That much was obvious by the three separate judgements of the Court and the variety of submissions by the parties and interveners. It was also obvious by the manner in which K-Generation's legal representative conducted his/her client's case at first instance.

By way of example, the provision in K-Generation which indicates that the Court/tribunal must test the Commissioner's classification is the definition of 'criminal intelligence' as follows:

criminal intelligence means information relating to actual or suspected criminal activity…the disclosure of which could reasonably be expected to prejudice criminal investigations, or to enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement.

The underlined phrase 'could reasonably be expected' was considered by the High Court to be significant because it was interpreted to mean that whether information was criminal intelligence was to be determined by a court by reference to the criteria outlined in the definitional provision. Neither the Licensing Court at first instance nor any party before it so interpreted this provision.

Another example concerns confidentiality and procedural fairness. The provision in K-Generation which indicates the existence of the safeguards (3) and (4) above relevantly provides as follows:

…the Commissioner, the Court or the Supreme Court must…take steps to maintain the confidentiality of…criminal intelligence, including steps to receive evidence and hear argument about the information in private in the absence of the parties to the proceedings and their representatives…

The High Court considered that this provision, properly construed, gave the Licensing Court (and Supreme Court) a degree of flexibility in the steps to be taken to maintain confidentiality. The legislation did not direct the Licensing Court as to the particular steps to be taken, nor did it deny the Court the assistance of submissions by the aggrieved party(s) as to what those steps should be. Importantly, the underlined phrase 'including steps…' does not mandate the taking of steps to hear argument in private in the absence of the aggrieved parties. That phrase simply outlines the limits of the range the Court may act in. Again, neither the Licensing Court at first instance nor any party before it so interpreted this provision.

The question the High Court in K-Generation considered was whether s28A was a valid law, not whether it was well or appropriately drafted. Indeed, the Court acknowledged the legislation departed from rules normally observed in legislation affecting courts in this country.

It is, of course, preferable for legislation to be clear on its face so it can be understood (as much as possible) by the community as a whole, not just the legal community. It is in its failure in this respect that the Bill is open to some criticism.

I should pause there and just say the Law Society is now talking about the bill before this council. The Law Society's advice continues:

Whilst it seeks to standardise those provisions the High Court considered were valid, it does so without apparent regard to the clarity of the legislation. It would be preferable if the Bill could expressly, and in plain language, outline for all to read in a readily understandable way the important and fundamental features that led to the High Court ruling the legislation was valid.

The principal concern is to avoid in future the situation that occurred at first instance in K-Generation. One must not assume that all future litigants, including their legal representatives, will correctly read the legislation in light of K-Generation.

For those of us who have had to wade through the judgement in Totani, it would be cruel and unusual punishment to expect ordinary citizens to read statutes with a High Court judgement in the other hand.

The Liberal opposition, in response to the Law Society's comment, is not closed to the prospect of enumerating the details of the court procedures in relation to criminal intelligence. However, given the 4 December deadline, we do not have the time to do so in this round of amendments. In any event, we do not consider it is always the best practice to codify these matters. It may well be that guidance on these matters may better sit in other documents such as police policies or Magistrates Court rules.

In our proposed amendments, we specifically ask for review on the compliance of police and courts with relevant judicial considerations. When members read those elements in the amendments, I would remind them that the cases that we had particularly in mind were K-Generation and Totani. It is important that our laws and our practice reflect both statute law and common law.

Advice we have received from the government indicates that criminal intelligence is not regularly used and is being managed to an international standard that is commonly used throughout the world. The Liberal opposition, nonetheless, sees the value of reviewing where we are and where we are going with criminal intelligence. Considering that these tools have been put in place in the context of the serious and organised crime efforts, we believe that it is appropriate that this accountability and review be managed within the SOCCA framework.

There is a review of the SOCCA legislation scheduled for 2012. The SOCCA legislation was proclaimed on 4 September 2008. An annual review is due to the minister by 30 December 2010, and the review must be tabled within 12 sitting days. I know that the council is eagerly awaiting the tabling of the next report. A four-year review is due to commence on 4 September 2012.

The Liberal opposition also sees the need for enhanced recording and reporting of the use of criminal intelligence. In the absence of reporting an assessment, it is difficult to establish how useful criminal intelligence is over and above other tools, including public interest immunity, and what impact it is having on the rights of parties. The information we have been given suggests that criminal intelligence is not being widely used, but that is not to say that the police may not use it more in the future.

I will summarise in very broad terms the amendments that have been filed in my name. Through those amendments, the Liberal opposition seeks to focus criminal intelligence on serious and organised crime in accordance with the intention of the government. We will seek to strengthen reporting and review, particularly through a review of the use of criminal intelligence, an enhanced annual review, a four-year review and enhanced powers to the reviewer.

We will maintain parliamentary oversight through the use of a sunset clause for each criminal intelligence provision and align those sunset clauses with a sunset clause in the serious and organised crime act. I look forward to consideration of this bill in the committee stage.

Debate adjourned on motion of Hon. R.P. Wortley.