STATUTES AMENDMENT (CRIMINAL INTELLIGENCE) BILL

Committee Stage

In committee.

Clause 1.

The Hon. S.G. WADE: I understand that the government has had access to advice from the Law Society raising concerns that the bill before us does not appropriately deal with the police commissioner's power to delegate. Can the government confirm that it has received that advice and advise the committee whether it thinks the Law Society's concerns are well founded?

The Hon. P. HOLLOWAY: I have been advised that the Law Society sent a letter dated 22 November to the shadow attorney-general, as I understand it, so we have only just received a copy. I can assure the honourable member that we will take the contents of that letter into account when we deal with the more substantive considerations of these matters. I gather that the matters here deal with a much broader range of issues than are dealt with in this bill.

Clause passed.

Clauses 2 and 3 passed.

New clause 3A.

The Hon. S.G. WADE: I move:

Page 3, after line 1—Insert:

3A—Amendment of section 3—Interpretation

(1) Section 3(1)—definition of criminal intelligence—delete 'criminal activity' and substitute:

serious and organised criminal activity

(2) Section 3(1)—after the definition of police officer insert:

serious and organised criminal activity means criminal activity involving 2 or more persons who are reasonably suspected of associating for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity (within the meaning of the Serious and Organised Crime (Control) Act 2008);

There are a number of amendments, but I think members would have realised, even from earlier drafts, that there is a cluster of three. This would be the first cluster, which I might characterise as the cluster on focus or scope.

It is the opposition's view that, as the government indicated in its second reading explanation, these acts have developed over the years as part of the government's efforts to deal with serious and organised crime. Criminal intelligence provisions have risks to the justice system and to policing, so we believe it is appropriate that they be focused. We believe that the government's expressed focus on serious and organised crime should be reflected in the statutes and so we move this amendment; particularly new clause 3A(2) has a key element, if you like.

The opposition, in putting this focus into the statute, was very keen to make sure that we support the police in dealing with serious and organised crime. The converse is also true: we were keen to focus the police on serious and organised crime. Police should not have access to extraordinary powers to deal with ordinary crime.

In that regard, I would remind the council that no other jurisdiction uses criminal intelligence outside its Serious and Organised Crime (Control) Act or its equivalent. In that regard, we drafted an amendment which was focused on the government's own Serious and Organised Crime (Control) Act definitions of 'members', 'criminal activity' and 'organisations', and we approached the government in all good faith hoping that we could reach an agreement.

I just remind the council of the sequence of events. On Wednesday 9 November, Ms Vickie Chapman in the other place outlined the amendments that the opposition was proposing. She went into further detail in a further contribution in the House of Assembly on 10 November. That was 15 days ago.

On Friday 19 November, six days ago, I met with the Attorney-General and provided our proposed amendments, which include an earlier draft that has been made available to members in this house (although not formally filed). The Attorney-General's response was to arrange for us to meet with senior police and legal advisers. We welcomed the opportunity and we were grateful that they were able to meet twice with me and the member for Bragg in the other place.

The police expressed their concern about the original form of the amendment and they suggested it would be unworkable. We differed in our interpretation of how the clause would operate but we indicated our willingness to receive alternative amendments from the government. Yesterday morning the draft amendments were distributed to the crossbenchers. Later that afternoon, I met with the Attorney-General, and I understood that we had an undertaking from the government that they would come back with an alternative set of words that might provide focus to the bill without unnecessarily encumbering the police.

This morning, we were advised by the Attorney-General's office that they were not going to offer an alternative so we were faced as an opposition with the prospect of not having any attempt by this parliament to indicate the need for focus with these extraordinary powers or to offer a set of words. Now, we could have gone ahead with the words that relied on the government's own SOCCA act but, with advice from the police that they are unworkable, we are concerned about the prospect of a dual test within those amendments, and we decided it was a responsible thing to do to provide an alternative set of words that more clearly would be workable.

Why do I think that they would be workable? My key conviction that they would be workable is the fact that they are working in other states. The definition provided in this amendment is based on Victorian provisions in relation to organised crime offences. Similar words are used in the Victorian Major Crime Investigative Powers Act 2004 and also in their consorting offence in section 49 of the Summary Offences Act 1966 of Victoria. The definition I propose would apply to a broader range of offences than the equivalent Victorian provisions because it uses the SOCCA definition of serious criminal activity whereas the Victorian provision only applies to serious indictable offences punishable by imprisonment for 10 years or more.

My definition is probably also a little bit less onerous in that the Victorian provision requires that the offending involves substantial planning and organisation, forms part of systemic and continuing criminal activity and has a purpose of obtaining profit, gain, power or influence or in the case of investigative powers legislation, sexual gratification where the victim is a child.

I believe it is workable because it is working in another state. I believe it is not too narrow because it is broader than another comparable jurisdiction. I believe this is a significant stepping back from the focus that we originally suggested. It is clearly more inclusive than our original set, and I would reserve the opposition's position as to whether it is sufficiently focused.

As these bills develop over time, I would suggest that the opposition and all parties should consider where the balance should be. In that regard, I would urge the committee to take the opportunity to start on the path. If we do not take the opportunity to express this parliament's conviction to balance community safety with established principles of our legal system, we are saying to the government, 'That's fine; let's have a shotgun, not a sniper's gun.'

I would urge the committee to support this clause. The government has had weeks to provide alternatives. If the committee does support it and the government feels compelled to acquiesce today, I would remind members and remind the government that this parliament is scheduled to meet again in February. Criminal intelligence is rarely used, as I have conceded and, in that context, I doubt if there will be many court hearings over Christmas and the New Year where criminal intelligence might be an issue.

If the government, having failed to take the opportunity to engage the parliament in developing a better definition (if there is one), wants to have another go, I would indicate the opposition's willingness to have the best legislation we can. Based on Victorian experience, based on the soundness of the words, I would suggest that the definition that I have in my amendments is very responsible, but it shows commitment from this parliament to focus special powers on special situations, and that is serious and organised crime.

The Hon. P. HOLLOWAY: I gather we will take this as a test clause for at least the first set of amendments that has been filed by the Hon. Mr Wade. The first of these sets is about the definition and scope of criminal intelligence. Perhaps before I get to the arguments, I note that during his comments the Hon. Mr Wade made the comment along the lines that criminal intelligence is not used elsewhere. I have been advised that, for example, criminal intelligence is used in New South Wales in relation to the Security Industry Act. My advice is that in fact there are examples and there may be others where criminal intelligence is used elsewhere.

To get to the impact of these amendments, the government is adamant in its opposition to the first two sets of amendments including the one before us. If I can cover first the legal effect of the proposed amendment to the definition of criminal intelligence, the proposed definition of criminal intelligence would significantly limit the scope of the criminal intelligence provisions.

The criminal intelligence provisions could only be used where the criminal offending involved members of organisations suspected of being criminal ones. However, some organised crime is completely unrelated to members of organisations suspected to be criminal ones or involves those with links to those organisations who are not members on any definition.

The existing definition of criminal intelligence, which the opposition wants to do away with, captures all these criminals. Since the applicant has to demonstrate that a serious organised criminal group is involved in order to use criminal intelligence, it would have to use criminal intelligence in order to use criminal intelligence or otherwise not proceed, which is absurd. The definition of criminal intelligence is information that, if made public, would enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement or to endanger a person's life or physical safety.

The opposition's amendment restricts that to serious and organised criminal activity. Could the opposition explain why it wants to, for example, put a person's life at risk just because the criminal activity concerned is not serious and organised? The practical application of the proposed amendment to the definition of criminal intelligence also needs to be considered. I am told the opposition's amendment would, in some cases, make SAPOL's job a lot harder and that the provisions would have limited practical application.

I am told that known members of criminal organisations are unlikely to apply for firearms and other licences. The proposed definition of criminal intelligence is too onerous. In addition to the existing stringent requirements, the opposition's amendments would require SAPOL to establish the existence of an organisation, establish membership of that organisation, establish that there was a proper basis for suspecting that the organisation was a criminal one and, finally, that the criminal activity involved the member.

If we go to some of the consequences of the opposition amendments, they would wind back the clock in the fight against organised crime, as organised crime today is very fluid and diversified. Some individuals who might not currently get, for example, a firearms or other licence could get one under the opposition's amendments.

Some individuals who might have a firearms prohibition order imposed on them under existing provisions might not, under the opposition's amendments. Some individuals who might currently be refused permission to work in industries that are known to be infiltrated by organised crime and pose a threat to the safety of South Australians may get approval under the opposition's amendments. Some individuals who might currently be barred from the casino or licensed premises may gain entry under the opposition's amendments.

The proposed amendments would also impact on the number of matters investigated and prosecuted under the newly proclaimed unexplained wealth legislation. They are the government's reasons for strongly opposing the first set of amendments. This will be a test clause for them, and I will outline the government's arguments to the later set of amendments when we come to them.

The Hon. S.G. WADE: I appreciate that the minister is representing a minister in another place and is put in a predicament in representing him but, with all due respect, a number of those points would have been legitimate criticism of my first amendments. For example, the minister gave a series of what I would call tests, for example, the existence or membership of an organisation, whether the organisation was criminal or involved in a crime, and what have you. They are all criticisms of the earlier draft amendments which were offered to the government and which it rejected.

There is no mention of an organisation in my amendments: it says two or more people. 'Two or more people' does not need to be an organisation: it is two or more people. If the minister can find my reference to an organisation and why it requires the proof of an existence, proof of membership, and so on, I would be glad to see it, because I cannot. In terms of the issue of scope, the minister asks why we would want to limit the use of criminal intelligence to serious and organised criminal activity. I pose a question back to the government: you told us that it was focused on serious and organised criminal activity.

We believe that the English legal system has developed with a good balance of rights and opportunities. Public interest immunity has strongly developed over centuries of English law to significantly facilitate the state in criminal investigations. It may well be that enhancements to those laws are warranted, but this government tells us that this tool is for serious and organised crime. We took it at its word, we are trying to provide that focus, and now it is telling us that it does not want that focus.

The Hon. P. HOLLOWAY: It is one thing to talk about the evolution of the legal system; unfortunately, there is a very rapid evolution in technology as well as in criminal behaviour. I guess the fact that successful organised crime, wherever it may be around the world, can learn very quickly from other organised crime, or be in contact with it, due to the recent incredibly rapid changes in communications for example, as well as other technology, means that we need to keep up with it. One of the great criticisms by criminologists of governments and organisations fighting against crime has been their slow response and the fact that they do not appear to be able to keep up with changing trends.

However, to address the real point raised by the Hon. Mr Wade—which was, I think, a challenge to me to show why, with his new amendment, it would be necessary to establish membership of an organisation, with the basis for suspecting that the organisation was a criminal one, etc.—one has only to look at the definition he is putting in 3A(2), as follows:

'serious and organised criminal activity' means criminal activity involving 2 or more persons—

yes, he has changed that, but it is two or more persons—

who are reasonably suspected of associating for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity (within the meaning of the Serious and Organised Crime (Control) Act 2008);

I think that answers his question. That is exactly why SAPOL would need to establish those facts, because the honourable member's definition provides '2 or more persons…reasonably suspected of associating for the purpose of organising' criminal activity.

The Hon. S.G. WADE: I strongly dispute that interpretation; I think, on the plain reading of it, it would not be so. Let me give the committee an example. Let us say that the police had footage of three pub robberies, and three people involved with quite distinctive balaclavas or disguise equipment to the point that it was clear to police that the same group of people was involved. The police became aware of one of those people, and were therefore able to locate the group. That would fall within my definition.

It is not an organisation, they have not said that they are related to each other, they have not made a bond; it is just (to use a business analogy for a criminal purpose) a small business. Clearly, it would be associating for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity. This is not a mini SOCCA, this does not require a process of a declaration of an organisation or proof of membership and so forth. I appreciate that they were legitimate concerns raised by the police in relation to my previous definition but the opposition, in good faith, has come back with a definition that it believes significantly broadens it, and in that sense significantly loses the focus that we hoped to achieve. However, I certainly believe that the revised definition would encompass all serious organised crime and more.

The Hon. D.G.E. HOOD: I have a question for the mover of the amendment. He has chosen to trigger his amendment at the involvement of two people; I presume that is because we are talking about organised criminal activity here, and there is a presumption that organising something involves a person. Could the honourable member just clarify for me: why not one person?

The Hon. S.G. WADE: I think this question again highlights the extent to which we have stepped towards the government, if you like. The government says that every criminal, no matter how they are acting, should be subject to these special powers—powers which the previous attorney-general called draconian and which the current Attorney-General has said are a breach of natural justice and due process, etc.

The member is quite right: to avoid having criminal intelligence put against you, you would need (to use a business analogy again) to be a sole trader. Two or more would potentially bring you under this provision. I defer to the Victorian precedent; the Victorians have found that this is a workable definition.

Our view is that, in the interests of starting the process of ensuring that we keep special tools focused on special circumstances (for example, a full assault on serious and organised crime), we submit to the parliament that this is a better evolution of the English legal system. In response partly to the previous comment by the minister, we are not asking that we go back to some quaint, archaic English system. We are not seeking to remove criminal intelligence; we are just seeking to focus it.

The Hon. M. PARNELL: To assist the committee in determining whether or not a division will be required on this clause, I take the opportunity now to put the Greens' position. The first thing I would say is that the Greens believe that our police force should have appropriate tools and more resources in order to do their job of keeping the community safe and detecting and prosecuting crime. Having said that, the Greens do not support criminal intelligence as a concept.

We believe it is a breach of the fundamental legal right that people have to know the case against them and to be able to test the evidence in a court of law. That is why we voted against the serious and organised crime act and why we voted against those clauses where criminal intelligence reared its head. It is interesting to note that we voted against the clause in the serious and organised crime bill that was found to be unconstitutional, and it was only the Greens and the Democrats who took that position in this parliament.

In relation to this amendment, the Hon. Stephen Wade provided an initial set of amendments and has now provided the revised set. I would say that the Greens preferred the original set. However, in relation to the revised set, we are inclined to support these amendments for the reason that they limit the range of situations where criminal intelligence can be used and therefore represent a small improvement on the status quo, but that does not mean that the Greens are supportive of the bill as a whole.

The Hon. A. BRESSINGTON: I rise to indicate that I will also be supporting the amendment, but probably for different reasons from those of the Hon. Mark Parnell. I do believe there is a need for criminal intelligence, but I believe that it needs to be contained so that we do not cast such a wide net that just about anybody could be considered to be a threat or possibly considered to be participating in criminal activity. It is a concern of mine that the net is a bit broad as it stands without this amendment.

As the Hon. Stephen Wade said, if there are problems with this amendment, the government has until February to identify what those problems are and, if it is found to be not workable, it can be brought back to parliament and we can reconsider it based not on what-ifs, maybes, could-bes and may-haves and all of those hypotheticals but based on firm solid evidence on how it is not workable and why.

The Hon. D.G.E. HOOD: I think what is happening here is that we are almost arguing about a very, very narrow difference. I think the original amendments the Hon. Mr Wade originally presented were substantially different from the government's bill, and that created the disagreement between the government and the opposition about what this should and should not do.

I think the Hon. Mr Wade would agree with me that his second set of amendments have brought the bill substantially closer to the government's position, and he seems to be acknowledging that fact, and it seems that the amendment will pass.

For the committee's information, I advise that I have had contact with Assistant Commissioner Harrison today, and he indicated to me that he is very keen on these amendments not being passed. I do not know whether other members have spoken to him; that is a matter for them.

It is a while since I have voted against one of the Hon. Mr Wade's amendments or probably an opposition amendment, but Family First will be on this occasion. The reason for that is that I do not want to stand in the way of what the police are saying they need. I am not an expert in these matters, but I believe the police are, and they know what they need.

You could easily argue: are they going to set the bar too high, are they always going to ask for more? Yes, that is possible. I think the amendment that is being proposed here is actually not substantially different to what is actually in the bill. Given that we are talking about involving two or more people; the bill would allow it to be one or more persons and, other than that, there is not much difference, as I see it. That being the case, I am happy with this law applying to one person as opposed to two people and, for that reason on this occasion, I will oppose the amendment.

The Hon. K.L. VINCENT: I rise briefly (or not rise, if we are getting technical) to indicate that, while my personal views on criminal intelligence are very similar to those of the Hon. Mr Parnell and the Greens, I do not see that as a reason to not support these amendments, and I will be doing so.

The Hon. J.A. DARLEY: I will be supporting the opposition's amendment.

The committee divided on the new clause:

Majority of 3 for the ayes.

New clause thus inserted.

Clauses 4 and 5 passed.

Progress reported; committee to sit again.